Opinion
E068410
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE ROMERO, JR., Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Brendon W. Marshall, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1604448) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Lawrence Romero guilty of possessing methamphetamine for sale, possessing drug paraphernalia, and resisting arrest. On appeal, Romero challenges his sales conviction on the ground the trial court improperly admitted three text messages from phones in his possession when the police arrested him. Finding no reversible error, we will affirm.
I
FACTUAL BACKGROUND
Two Riverside police officers were on patrol one evening in September 2016 when they noticed Romero and another man talking outside a home where they had previously made arrests. When Romero saw the patrol car, he hopped on his bicycle and rode off quickly in the other direction, looking over his shoulder frequently. The officers started to follow him and, after a couple blocks, he jumped off his bike and ran into the yard of a nearby home. The officers ordered him to stop, but he scaled a chain-link fence and hid behind some trash cans, where one of the officers saw him discard something from his pocket. He ended up surrendering when he realized he was cornered.
The officers did not notice any signs Romero was under the influence. They searched him and found in his pockets approximately one gram of methamphetamine, a glass pipe, $94 in cash, and a cell phone. Near the trash cans where he had been hiding they found approximately $125 in cash. The cash was in various denominations—twenties, tens, fives, and ones. Near the fence he had jumped, they found a backpack which he admitted belonged to him. Inside was a digital scale dusted with white residue, three more cell phones, and a folded up eight-by-nine-inch piece of plastic that appeared to have been cut from a shopping bag. Romero gave the police the access code to the phone they had found in his pocket, and he used it to call his wife before they took him to jail.
At trial, the prosecution showed the jury three texts from the phones in Romero's possession. Two were from the phone in his pocket. One was an incoming message sent a few days before the incident, saying, "Larry, call me. It's Ernie. I need an eighth. I got 50." The other was an outgoing message to a person named Donnie—sent about 15 minutes before Romero was arrested—saying, "I got 220. Can I get a full one." The arresting officer said there were multiple texts addressed to "Larry" on the phone from Romero's pocket. The third text came from one of the three phones in the backpack. It was an outgoing message sent over a month before the incident that said, "That's cool. I hate texting. Well, I'm about to crash out. Somebody hit me up for something. That's why I was asking." A forensic search revealed that most of the texts recovered from the phone in Romero's pocket had been deleted.
The prosecution's drug expert, Deputy Williams, said the items found on Romero indicate he intended to sell the methamphetamine. A dealer would use a digital scale to divvy up larger amounts of meth into sellable quantities. Dealers often carry large amounts of cash in small denominations, so they can quickly and easily make change during a transaction. It is also common for them to delete texts from their phones and switch back and forth between phones, to shield their communications from law enforcement. As a result, they are often in possession of multiple phones with histories of deleted texts.
Deputy Williams believed Romero had been using the piece of the plastic shopping bag for "tadpoles," a method of packaging drugs that is cheaper and easier than using individual baggies. To make one, you place the drug inside a plastic shopping bag, twist the bag around the drug and pull it off, "and it will pull kind of a tail because that plastic stretches." When the plastic tail stretches, "it tends to seal off" on its own, or you can burn or knot it. "It's a very cheap way to package. . . . You don't have to go to the local smoke shop and buy those little one-inch-by-one-inch Ziploc bags." Deputy Williams believed the plastic in Romero's backpack was for that exact purpose, remarking, "Who cuts out a piece of a shopping bag to carry around with them for anything?" He noted the plastic mostly had straight edges—indicating it had been cut out of a bag—but one portion looked like "it might have been ripped off."
Deputy Williams believed the outgoing text saying "I got 220. Can I get a full one" was Romero's attempt to buy an ounce of methamphetamine for $220 in order to resell it. He said an ounce of methamphetamine usually sold for anywhere between $200 and $350, and noted Romero had about $220 when he was arrested. A gram of methamphetamine (which is about what Romero had been carrying) is a "standard personal-use amount," but it was also common to sell a quarter-gram for $10. Sales go in cycles, and dealers will buy when their supply gets low.
The jury found Romero guilty of possessing methamphetamine for sale (Health & Saf. Code, § 11378, count 1), possessing drug paraphernalia (Health & Saf. Code, § 11364, count 2), and resisting arrest (Pen. Code, § 148, subd. (a)(1), count 3). Before trial, the court dismissed one of his two prior strike convictions based on the parties' stipulation. After trial, the court found he suffered four prison priors, granted his Romero motion to strike his other strike conviction, and sentenced him to 36 months of probation.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The terms of probation included a one-year drug rehabilitation program and one year in jail, but he received 525 days of credit.
II
DISCUSSION
Romero argues the trial court erred in admitting the three text messages. "We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion . . . [and] will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) We find no abuse of discretion.
A. The Incoming Text
Romero argues it was error to admit the incoming text that read, "Larry, call me. Its Ernie. I need an eighth. I got 50," because it had not been properly authenticated, was unduly cumulative, and violated his right to confront the person who sent it. He also argues the second half of the message was irrelevant to phone ownership and use, the purpose for which it was admitted.
1. The Text Was Properly Authenticated
All writings or documents must be authenticated before they are admitted into evidence. (Evid. Code, § 1401.) The proponent must introduce "sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered." (Goldsmith, supra, 59 Cal.4th at p. 267; Evid. Code, § 1401.) "The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication." (Goldsmith, at p. 267.) "Essentially, what is necessary is a prima facie case. '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.'" (Ibid.) A document can be authenticated by its contents if the writing refers to matters "unlikely to be known to anyone other than the person who is claimed by the proponent . . . to be the author of the writing." (Evid. Code, § 1421.)
Here, the prosecution offered the text as evidence the phone containing it belonged to Romero. The phone was in Romero's pocket and he knew its access code. More importantly, the text is addressed to "Larry," and Romero's first name is Lawrence. This evidence amply supports a prima facie finding that the text is a message sent to a phone belonging to Romero.
Romero argues the prosecution was required to produce evidence he actually received the text and acted on it, as well as evidence establishing who Ernie was, "what his relationship was, if any, to [Romero], and whether the purpose of his message was to buy drugs from [Romero]." This argument asks too much of the prosecution and loses sight of "the purpose for which the evidence is being offered," which dictates what type of evidence is sufficient for authentication. (Goldsmith, supra, 59 Cal.4th at p. 267.) Here, the prosecution presented the text to show Romero owned the phone, not to show he was transacting illicit sales with a person named Ernie. The identity and motive of the author and whether Romero read the text is immaterial to whether he owned the phone.
The out-of-state cases Romero cites are of no help. In addition to being nonbinding (Episcopal Church Cases (2009) 45 Cal.4th 467, 490), they discuss the importance of proving the identity of the sender when the prosecution presents a text as circumstantial evidence of guilt and argues the defendant or victim sent it. (Rodriguez v. State (2012) 128 Nev. 155, 162; Commonwealth v. Koch (Pa.Super.Ct. 2011) 39 A.3d 996, 1004.) Because they deal with a different purpose for offering the evidence, we find these cases inapplicable to our analysis.
The other case Romero cites, People v. Givans (N.Y. App. Div. 2007) 45 A.D.3d 1460, does not identify the purpose for which the texts were offered. --------
2. The Text Was Not Cumulative
As an initial matter, Romero forfeited his argument the text was cumulative of other evidence of phone ownership by not raising it with the trial court. (Evid. Code, § 353, subd. (a); People v. Doolin (2009) 45 Cal.4th 390, 437 [defendant forfeited evidentiary objections by not raising them with trial court]; People v. Partida (2005) 37 Cal.4th 428, 435 [defendant "may not argue that the court should have excluded the evidence for a reason different from his trial objection"].) But his argument fails on the merits anyway. The other evidence linking him to the phone—that it was in his backpack and he knew its access code—arguably showed only that he was in possession of the phone or using it temporarily. A text message addressed to him uniquely tends to show the phone belonged to him and that he wasn't, for example, simply borrowing a friend's phone.
3. The Text Did Not Implicate the Confrontation Clause
The confrontation clause applies only to testimonial hearsay, that is, out-of-court statements made in response to government investigations of crimes or made "with an eye toward trial." (People v. Morgan (2005) 125 Cal.App.4th 935, 946-947; Davis v. Washington (2006) 547 U.S. 813, 823 ["principal evil" at which the confrontation clause is directed is the use of ex parte "examinations" as evidence against the accused].) Ernie's text to Romero is about as far from testimonial as a statement can be. The text was not a response to a question or investigation—it was a voluntary and unprompted request to purchase drugs from one civilian to another. (See Morgan, at p. 947 [caller's statements to an undercover officer in an attempt to purchase drugs were not testimonial because caller did not know he was talking to law enforcement and the officer was not examining him].) The confrontation clause simply does not come into play.
4. The Second Half of the Text Was Not Prejudicial
At the close of evidence, the trial court instructed the jury it could "consider [the] text message only for the limited purpose of whether the phone belonged to [Romero]" and not "for any other purpose." Romero argues this limiting instruction was insufficient and the court should have instead redacted the second half of the text. He argues that even if the text was properly admitted to show he owned the phone, the second half ("I need an eighth. I got 50.") was irrelevant to ownership and was prejudicial because it was evidence of sales transactions that the jurors would not be able to disregard, despite the court's admonition.
We disagree the limiting instruction was inadequate to prevent the jury from considering the second half of the text as evidence of guilt. Courts assume juries understand and follow the instructions given to them. (E.g., People v. Bennett (2009) 45 Cal.4th 577, 614 ["we assume the jury followed the court's admonition, avoiding any prejudice"].) And even if we were to assume the jurors did not follow the instruction, we would not conclude the text was prejudicial. First of all, it played a minor role at trial. It was not part of the long list of evidence the drug expert considered indicative of an intent to sell, and the prosecutor did not mention it during closing argument. Defense counsel mentioned the text briefly, but only to remind the jurors of the trial court's instruction not to consider it as evidence of guilt. Second, the other evidence of intent to sell was so strong the jury would most likely have reached the same verdict without having seen the entirety of the text. Romero had several indicia of sale when he was arrested—an amount of methamphetamine that could be divided into multiple usable amounts, a large amount of cash in various denominations, a digital scale, a piece of plastic the expert said was obviously for packaging sales, and four cell phones—one of which contained a text from Romero looking to buy an ounce of the drug. In addition, Romero fled as soon as he saw the police and tried to get rid of the evidence that would show he was dealing as opposed to using—the scale, packaging, and money. It is not reasonably probable the jury was on the fence in the face of this evidence and the second half of the text tipped the scale towards intent to sell.
B. The Outgoing Texts
Romero argues the outgoing text to Donnie saying, "I got 220. Can I get a full one" found in the phone from his pocket was not properly authenticated. He also argues the court erred in concluding that text and the other outgoing text (the one that read, "That's cool. I hate texting. Well, I'm about to crash out. . . .") fell under the adoptive admission exception to hearsay. We reject these arguments.
1. Authentication
The prosecution offered the text as evidence of guilt—to show Romero wanted to purchase a large amount of methamphetamine from someone called Donnie so he could turn around and sell it. Romero argues the text was not authenticated because cell phones "can be passed from hand to hand [so] the author of the message could have been any number of people." He argues that when the text was sent (15 minutes before his arrest) he was at a house talking with another person, which means it could have been sent by "that person, or any other person in the house."
Romero misunderstands the prima facie case required to authenticate a document. The prosecution needed to produce only enough evidence to allow the court to conclude the text was sent from him. That the phone it was sent from was in his pocket, that he knew its access code, and that it contained multiple texts addressed to "Larry" constitutes a prima facie case of authentication. Add to that evidence the fact he had almost exactly $220 on him when the message was sent and there is more than sufficient evidence to allow the court to conclude he was the author.
In any event, it was not necessary for the prosecution to prove the text could not have been sent by anyone else. '"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.) In other words, questioning the identity of the text's author was a task for defense counsel during cross-examination. And defense counsel did just that—asking questions of the investigating officer during cross-examination and making arguments during closing intended to draw the authenticity and relevance of the text into doubt. At that point, it was up to the jury to decide how much weight to give the text. The trial court did not err in allowing the jury to see the text and decide its import.
2. 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." (Evid. Code, § 1200, subd. (a).) Hearsay is inadmissible, with certain exceptions, including when the evidence is offered against a party declarant. (Id., §§ 1200, subd. (b) & 1220 ["Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party"].) Both outgoing texts were statements made by, and offered against, Romero. As such, the trial court properly admitted them over his hearsay objections.
Romero does not argue the texts are hearsay to which no exception applies. Instead, he claims the court erred by concluding they fell under the adoptive admission exception. (Evid. Code, § 1221 ["Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth"].) First of all, we disagree with Romero's characterization of the court's ruling. We believe that when the court said the text was admissible as an "admission," it was using the "party admission" shorthand to refer to the party declarant exception, not the adoptive admission exception. But more importantly, it doesn't matter what terminology the court used when finding a hearsay exception applied. We review a court's ruling, not its reasoning, and will affirm on any correct basis supported by the record. (People v. Zapien (1993) 4 Cal.4th 929, 976.) The text fell under the party declarant exception and, for that reason, the court properly concluded it was not inadmissible hearsay.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. FIELDS
J.