Filed 9/13/17 P. v. Dean CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Jeanne E. Schechter, Commissioner.

Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Fred Warren Dean, Jr., was admitted to probation on July 30, 2015, after pleading no contest to one felony count of Penal Code section 273.5, subdivision (a). Among other conditions of his probation, defendant was ordered not to have any contact with the complaining witness, M.D., and to stay more than 100 yards away from M.D.’s residence and place of employment.

Defendant subsequently admitted to multiple violations of his probation, however, he contested an allegation alleging he had contact with M.D. and he had been within 100 yards of her residence. Following a contested hearing, the court found true the allegation. Defendant was sentenced to a term of four years in state prison.

On appeal, defendant claims certain text messages admitted at the hearing to show defendant had contact with M.D. were not properly authenticated. As a result, he contends the trial court erred in relying on the text messages in imposing his sentence. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Following defendant’s placement on probation, four separate violations of probation were filed against him. The first violation, filed on January 26, 2016, alleged defendant had failed to enroll in a batterer’s treatment program, he had failed to report to probation, he had unapproved contact with M.D., and he had used alcohol. Defendant admitted the violation and was sentenced to 30 days’ county jail. His probation was revoked and reinstated under the terms and conditions previously imposed.

The second violation, filed on March 21, 2016, alleged defendant had failed to enroll in a batterer’s treatment program, had failed to report to probation, had unapproved contact with M.D., and had used methamphetamine. Defendant admitted the violation and was sentenced to 60 days’ county jail. His probation was revoked and reinstated under the terms and conditions previously imposed.

The third violation, filed on April 28, 2016, alleged defendant had failed to stay away from M.D.’s residence, had used marijuana, and had used alcohol on two separate occasions. Defendant admitted the violation and he was sentenced to 90 days’ county jail. His probation was revoked and reinstated under the terms and conditions previously imposed.

Defendant initially denied a fourth violation, filed on June 3, 2016, and a contested probation revocation hearing was set. The violation alleged defendant had contact with M.D. between May 27 and May 29, 2016, and he was within 100 yards of her residence. Defendant was also alleged to have used alcohol and methamphetamine, and to have left Merced County without the permission of his probation officer.

At the hearing on June 27, 2016, defendant admitted every allegation but the first, which alleged unapproved contact with and proximity to M.D. After hearing testimony from two deputy probation officers and from defendant, the court found the contested allegation to be true and sentenced defendant to the upper term of four years in state prison.

Defendant filed a timely notice of appeal on July 13, 2016.

The Contested Allegation

On June 1, 2016, M.D. showed Deputy Probation Officer Marisa Hernandez two text messages she had received on her cell phone. One message read: “I’m at the white house. I need to talk to you.” Another message read: “I feel like killing you right now, but that’s not cool. I love you.” The name “Fred Dean” appeared next to both messages. According to Officer Hernandez, the “white house” was “a residence where there’s criminal activity involved,” and M.D. had encountered defendant there on a prior occasion. M.D. told Officer Hernandez she had received the text messages one week prior to June 1st.

When defendant was arrested, he had a cell phone in his possession. Defendant told Officer Hernandez the cell phone belonged to his father. Officer Hernandez was unable to verify the identity of the account holder. However, when she dialed the number associated with the text messages received by M.D., the cell phone in defendant’s possession rang. Defendant’s cousin, Kenny Spencer, told Officer Hernandez he had contacted M.D. with the same cell phone earlier that day in an attempt “to get a hold of [M.D.’s] grandson.”

GPS tracking showed defendant, who had been fitted with an ankle monitor, was “right across the street” from M.D.’s apartment complex on at least one occasion.

At the hearing, defendant testified he did not own a cell phone because he did not have identification to establish an account. The cell phone in his possession when he was arrested was his father’s, and his cousin used it to stay in contact with M.D. The phone was in defendant’s possession at the time of his arrest because his cousin had just handed it to him to “talk to [defendant’s] dad.” With respect to the GPS evidence, defendant admitted he was at a location near M.D.’s apartment, but he believed M.D. had moved away, and he was simply waiting at a bus stop to travel to and from a nearby adult school. Defendant acknowledged the bus stop “was very, very close to [M.D.’s] home.”

The prosecutor adduced evidence showing the bus stop defendant claimed he was at was half a block away from M.D.’s residence, but defendant’s ankle device showed he was right across the street from M.D.’s apartment complex. The evidence also showed there was another bus stop nearby which defendant could have used to get to the adult school. The trial court found the People had proven, by a preponderance of the evidence, defendant had violated the no-contact order by contacting M.D. and coming within 100 yards of her residence.

DISCUSSION

Defendant contends the trial court erred when it considered evidence of two text messages purportedly authored by defendant in aggravation of his sentence. He specifically contends the text messages were inadmissible because their authenticity rested on hearsay. We find no error, nor prejudice assuming error.

The undisputed evidence adduced at defendant’s hearing shows he violated the terms of his probation on several grounds, including by coming within 100 yards of M.D.’s residence. Contrary to defendant’s assertions, the court relied on defendant’s habitual violation of the no-contact order as one among several reasons to terminate his probation, rather than as a factor in aggravation of his prison sentence. Thus, defendant’s claim he would have received “a lesser sentence” if the text messages had not been admitted at his probation hearing is without merit.

A. Sentencing Discretion on Revoking Probation

When the trial court in a criminal case decides at the time of sentencing to grant the defendant probation, the court may either suspend imposition of the sentence or impose the sentence but suspend its execution. (See Pen. Code, § 1203.1, subd. (a).) “f the trial court has suspended imposition of sentence, it ultimately may select any available sentencing option.” ([i]People v. Howard (1997) 16 Cal.4th 1081, 1084, italics omitted; see Pen. Code, § 1203.4, subd. (c).) However, the imposition of a sentence following a decision to revoke and terminate a defendant’s probation must base the length of that sentence on the facts as they existed at the original sentencing. (Cal. Rules of Court, rule 4.435(b)(l).) “‘[A] later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement.’” (People v. Black (2009) 176 Cal.App.4th 145, 151, quoting People v. Harris (1990) 226 Cal.App.3d 141, 147.)

B. Trial Court’s Ruling

Following defense counsel’s objection to admission of the text messages on hearsay and foundational grounds, the court permitted the prosecutor to ask further questions about the texts, subject to the prosecutor’s ability to lay a foundation for their admission. After the parties’ examination of the witnesses was completed, the court addressed the admissibility of the text messages, stating: “All right. With respect to the text messages, I do think a sufficient foundation has been established. I think the issue is more—it’s not admissibility, it’s more relevant to the weight that the Court would attribute to it at this point.”

At the conclusion of the hearing, the court found the texts were more likely than not authored by defendant, and that defendant came within 100 yards of M.D.’s residence. During sentencing, the court held it would be appropriate to terminate probation and sentence defendant to the California Department of Corrections and Rehabilitation.

C. Authentication of a Writing

The dispute here is not whether the text messages come within a hearsay exception, but whether the messages were sufficiently authenticated. We conclude they were.

All writings, including text messages, must be authenticated before they are received into evidence or before secondary evidence of their contents may be received. (Evid. Code, § 1401.) A writing is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be. (Evid. Code, § 1400.) “[A]uthentication of a writing is independent of the question of whether the content of the writing is inadmissible as hearsay.” (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1028.)

A document’s contents may be used to authenticate the document. (Evid. Code, § 1421 [“[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”]; accord, Chaplin v. Sullivan (1945) 67 Cal.App.2d 728, 734.) “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.’” (People v. Goldsmith (2014) 59 Cal.4th 258, 267, quoting Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.) The trial court’s finding that a writing has been sufficiently authenticated is reviewed under an abuse of discretion standard. (People v. Lucas (1995) 12 Cal.4th 415, 466.)

D. Legal Analysis

1. The Trial Court Did Not Err in Finding the Text Messages Had Been Authenticated

Here, there are two text messages at issue. The first stated, “I’m at the white house. I need to talk to you.” The second message read, “I feel like killing you right now, but that’s not cool. I love you.” The name “Fred Dean” appeared next to both messages. According to Officer Hernandez, the “white house” was “a residence where there’s criminal activity involved,” and M.D. had encountered defendant there on a prior occasion. M.D. told Officer Hernandez the texts had been received one week prior to their meeting.

In light of the fact the text messages had been sent from a phone in defendant’s possession at the time of his arrest, in addition to the content of the messages, we conclude the text messages were sufficiently authenticated to show they were likely authored by defendant. Although conflicting inferences can be drawn from this evidence, the trial court correctly noted this goes to the document’s weight as evidence, not its admissibility. (People v. Goldsmith, supra, 59 Cal.4th at p. 267.)

While defendant testified the phone belonged to his father, and defendant’s cousin told Officer Hernandez he had used the phone to contact M.D. earlier that day, the phone was in defendant’s possession at the time of defendant’s arrest. While custody alone does not support the conclusion defendant authored the text messages, the content of the messages in addition to the fact the phone was in his possession reasonably supports such a conclusion. The first text messages asks M.D. to meet at “the white house,” a place M.D. told Officer Hernandez she had previously encountered defendant. No evidence was presented showing anyone other than defendant and M.D. understood the significance of “the white house.” (Evid. Code, § 1421 [“[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”].)

With respect to the second text message, it is unlikely anyone else with custody of the phone, including defendant’s father or his cousin, would have sent the text message. The text message stated, “I feel like killing you right now, but that’s not cool. I love you.” Given defendant’s repeated violations of the no-contact order with M.D., it is reasonable to infer defendant authored the text message. We find no error with respect to the trial court’s ruling finding the text messages had been authenticated.

Defendant contends the display of his name next to the text messages was a hearsay statement. The Attorney General concedes as much and agrees the trial court erroneously overruled defendant’s objection on this point. In concluding the text messages were sufficiently authenticated, however, we do not rely on the fact the texts were sent by someone saved in M.D.’s phone as “Fred Dean.” This does not necessarily show defendant authored the text messages since defendant did not have exclusive control over the phone.

Defendant further contends the only evidence showing the date the text messages were sent was based on hearsay. M.D. told Officer Hernandez the text messages were sent one week prior to June 1, 2016. Although Hernandez took photographs of the text messages, the date the text messages were sent was illegible from the photographs. However, the record shows defense counsel failed to lodge a timely and specific objection to Officer Hernandez’s testimony as to the date the text messages were sent. “‘“t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding.”’” ([i]People v. Panah (2005) 35 Cal.4th 395, 476, quoting People v. Bailey (1991) 1 Cal.App.4th 459, 463.) Thus, Officer Hernandez’s testimony as to the date the text messages had been sent was admissible evidence.

2. Defendant Has Failed to Show Prejudice

Even assuming the text messages had not been adequately authenticated, we find no prejudice from the trial court’s reliance on the text messages. First, notwithstanding his violation of the no-contact order, defendant admitted to several probation violations at his hearing. As such, there were multiple grounds to conclude he had violated the terms of his probation.

Second, the court did not rely exclusively on the text messages in finding defendant violated the no-contact order. During his testimony at the hearing, defendant admitted he came “very, very close to [M.D.’s] house.” His admission was corroborated by a report based on his GPS monitor showing he had come within a few feet of M.D.’s residence. Thus, even excluding the text messages, the evidence showed defendant violated the terms of the no-contact order.

Finally, insofar as the court did rely on the text messages during sentencing, we reject defendant’s assertion the court relied on the text messages as a factor in aggravation of his sentence. During sentencing, the court noted the text messages were part of a continuing obsession defendant had with M.D., which “[defendant] has taken to another level by threatening to kill her now, saying ‘I love you, but I want to kill you.’” The court further noted, “the Court is very concerned about this. And unfortunately, [defendant] has been unable to leave this victim alone, despite previous warnings and despite the prior history of domestic violence I believe exists between them as well.” However, the court discussed the text messages in the context of its decision to revoke defendant’s probation: “So the Court does feel that due to his very poor performance on probation that he made it clear he’s not willing to comply with the terms of probation.”

Later, when discussing factors in aggravation of defendant’s sentence under California Rules of Court, rule 4.421(a), the court found the presence of the following factors: the underlying incident involved great bodily harm (id., rule 4.421(a)(1), (2)), defendant had numerous prior convictions (id., rule 4.421(b)(2)), including a prior domestic violence conviction and convictions for other violent offenses (id., rule 4.421(b)(3)), defendant had served a prior prison term (id., rule 4.421(b)(3)), he was on misdemeanor probation at the time of his arrest, and his performance on probation and parole had been very poor (id., rule 4.421(b)(4), (5)). The court also found there were “[no] mitigating factors whatsoever.” Notably, the court did not mention the text messages as an aggravating factor in defendant’s sentence.

Based on the record, it appears the court relied on the text messages as one of the reasons to revoke defendant’s probation, but it did find the text messages were an aggravating factor under rule 4.421(a) of California Rules of Court. Because defendant was shown to have violated the no-contact order by coming within 100 yards of M.D.’s home, we are unable to conclude defendant would have received a lesser sentence in the absence of the admission of the text messages. For these reasons, we find any erroneous admission of the text messages harmless.

DISPOSITION

The judgment is affirmed.