P. v. McKinley
Filed 2/24/12 P. v.
McKinley CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ALGEREY McKINLEY,
Defendant and Appellant.
C066956
(Super.
Ct. No. 095032)
Following a jury
trial, defendant Algerey McKinley was convicted of
& Saf. Code, § 11351.5) and possession of methamphetamine for sale
(Health & Saf. Code, § 11378).
The trial court sustained prior narcotics conviction (Health & Saf.
Code, § 11370.2) and prior prison term (Pen. Code, § 667.5) enhancements, and
sentenced defendant to nine years eight months in prison.
On appeal,
defendant contends the trial court erred in admitting text messages, and a
witness improperly disclosed his criminal history. We shall affirm.
FACTS
In 2009 members of
the Yolo
County Narcotics Enforcement Team (YONET) made two undercover
methamphetamine purchases at 612 and 614 Welland Way
in West Sacramento.
YONET members observed Marsha Bertagna exit the home at 614 Welland
and walk across the lawn to 612 Welland,
where she sold methamphetamine to undercover informants. YONET officers later executed a search
warrant on the two residences.
Officers entering
the 614 Welland residence found
defendant in the dining room, about two to three feet from a computer
desk. A search of the desk revealed a
mechanic’s glove containing saleable amounts of cocaine base and
methamphetamine in individual packages, a letter addressed to defendant, and a
pay/owe sheet in the top left drawer.
There were several baggies of marijuana and a scale in the center
drawer, and a letter to defendant with a Sacramento
address in the top right drawer.
Defendant had a
wallet containing over $700 in cash and his driver’s license. The southeast bedroom closet held a jacket
with $6,000 in cash and a wallet with defendant’s Social Security card, along
with a glass jar containing two packages of methamphetamine weighing 13.9 grams
and 27.8 grams. A bathrobe in the closet
held a digital scale, a glass pipe, and six packages of methamphetamine, each
weighing .5 to .6 gram, and one package of methamphetamine weighing 1.8
grams. A bedroom dresser contained a
cellular phone bill in defendant’s name, showing the 612 Welland
address. A purse containing a pill
bottle in Bertagna’s name was also found in the bedroom.
Defendant dropped a cellular phone he was
holding when the officers entered the 614 Welland
residence.
over defendant’s objection.
At the time of the
search, 67-year-old Herman Mitchell had been renting a room from defendant at
614 Welland for three days. He identified a picture of Bertagna as
defendant’s girlfriend, who shared a bedroom with defendant. At trial, Mitchell denied getting rock
cocaine from defendant but had previously admitted to a YONET officer that he
got the drug from defendant.
Bertagna testified
that she had known defendant for about 32 years and started a romantic
relationship with him when she left her abusive husband. She lived at 614 Welland,
while defendant lived at 612 Welland. The $6,000 in cash was part of her $25,105
winnings from a slot machine at the Jackson Rancheria Casino. Defendant was in her house to fix the back
door on the day of the search, and she had paid him $600 to $700 in cash.
Bertagna claimed
the methamphetamine in the closet was hers.
She obtained the drugs from Mitchell and sold them through one of her
husband’s friends. She never saw
defendant possess or sell methamphetamine.
As a result of the raid, Bertagna pleaded no contest to possession of
methamphetamine for sale and was sentenced to state prison.
Prior to trial,
Bertagna told a YONET officer that she sold the methamphetamine to the
informant. Defendant gave her the
methamphetamine, and after completing the transaction, she gave defendant the
proceeds. Bertagna admitted she sold
drugs many times. She also admitted that
defendant lived with her at 614 Welland,
sharing the southeast bedroom.
Tapes of three
telephone calls from defendant while in jail to Bertagna were played to the
jury. Videos of the two undercover drug
buys were also presented to the jury.
Defendant’s son,
Michael Allen, testified that he lived at 614 Welland
with Mitchell and Bertagna at the time of the search. Allen claimed he got the methamphetamine and
cocaine base from Mitchell and sold the drugs for him. Allen never sold drugs to his father or had
his father sell drugs for him. The cell
phone was his, although Allen let defendant use it.
A YONET officer
testified that Allen said the methamphetamine was not his, and defendant lived
with him at 614 Welland.
DISCUSSION
I
Defendant contends
the trial court committed prejudicial error in admitting the text messages from
the cell phone.
The People
presented three text messages, made on October 27,
2009. At 11:28 a.m., the phone received the following
text from a Rebecca30: “AY can you front
me a dime or a dub until later, please
I’m selling my text bike later today for, like, sixty or eighty bucks,
so as soon as the person gets off work.
Please.” At 11:32 a.m., the following text was sent from the phone to
Rebecca30: “Your credit is bad. You know why, but we are still friends.” Two minutes later, Rebecca30 texted: “I paid you all except for thirty. You told me if I give you a ride -- or if I
gave you a ride that one time that I wouldn’t owe you it. We’d be even.”
Defendant objected
to the texts as inadmissible hearsay lacking a sufficient foundation that he
sent and received them. The trial court
denied the objections, finding the texts from Rebecca30 were not admitted for
the truth of their statements, the text sent from the seized phone was a party
admission, the phone was in defendant’s possession, and any foundational claims
by defendant could be addressed in closing argument.
The trial court
instructed the jury that any text messages from the phone were evidence, but
incoming messages could not be considered for the truth of the statements, only
as context for the outgoing message.
After the three text messages were presented to the jury, the trial
court struck the third text, finding it did not place the outgoing message in
context.
Defendant asserts
the trial court erred in overruling the foundation objection with the
statement: “That is a matter that can be
dealt with in argument . . . .” He also
argues the incoming messages were inadmissible hearsay because they provided no
context unless the jury considered them for the truth of what was stated --
that the discussion was about a drug deal.
Defendant’s
foundation claim addresses the texts’ authenticity. A writing must be authenticated before it may
be admitted into evidence. (Evid. Code,
§ 1401, subd. (a).) Authentication is
“(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.” (Evid. Code, § 1400.)
After the trial
court makes a preliminary finding that sufficient facts exist to authenticate a
document, “the authenticity of the document becomes a question of fact for the
trier of fact.” (McAllister v. George (1977) 73 Cal.App.3d 258, 262; see
324, 328-329.) The trial court’s ruling
is reviewed for abuse of discretion. (
165.) Documents may be authenticated in
various ways. “Circumstantial evidence,
content and location are all valid means of authentication. [Citations.]”
(People v. Gibson (2001) 90
Cal.App.4th 371, 383.)
The text messages
in question were either sent or received by a phone held by defendant when the
officers entered the house. This was
sufficient evidence for the trial court to make the preliminary finding that
the incoming text was sent to defendant and that he sent the outgoing
text. Once the trial court made this
finding, the ultimate question of whether the texts were authentic was left to
the jury. The trial court followed this
procedure and therefore committed no error.
The text from
Rebecca30 -- “AY can you front me a dime or a dub until later, please I am selling my text bike later today for,
like, sixty or eighty bucks, so as soon as the person gets off work. Please.” -- was not hearsay. The text was not admitted to prove the truth
of the matter asserted, that a person with the moniker “Rebecca30” wanted to
sell her bike for a certain amount; rather, it was offered to place defendant’s
response in context and thus show he used the phone to facilitate his drug business. (See People
v. Scalzi (1981) 126 Cal.App.3d 901, 907 [where declarant’s statement
imparting information is not offered for truth of the information but to show
hearer’s subsequent actions were in conformity with the information,
declarant’s statement is not hearsay].)
II
Defendant contends
evidence of his criminal record was improperly admitted during tape recordings
of his phone conversations with Bertagna.
(AOB 17)
Defendant filed an
in limine motion to exclude all evidence of taped calls between defendant and
Bertagna under the hearsay rule and Evidence Code section 352. The trial court ruled the tapes were
admissible, and counsel could listen to the tapes and request that particular
parts be excised.
The tapes were
next addressed in the middle of Bertagna’s testimony. The trial court listened to three tapes and
asked for comments from defense counsel.
Counsel renewed his objections, and noted the third tape contained
several references to defendant’s parole status, his prior record, and the time
he spent in prison. The trial court
declared it would allow the first two tapes to be played in their entirety, and
deleted three statements made by defendant in the third tape -- “I am a black
man on parole,” “I could never get on the stand because of my history,” and “I
am on parole.” Defense counsel replied
it was unfair for the prosecution to present tapes that included references to
his parole status at this point in the trial.
The trial court stated it had already indicated the references to his
parole status would not be included.
Defense counsel agreed but asserted that admitting only portions of the
tape would be misleading. Counsel then
raised unspecified Fourth, Fifth, and Sixth Amendment objections, which the
trial court denied.
The People next
played the first two tapes for the jury.
The third tape was played later, near the conclusion of the People’s
case. Defendant then moved for a
mistrial based on the contents of the third tape.
Defense counsel
asserted the tape contained four improper references to his criminal history
and parole status from defendant -- “‘Then they find we’ve been on parole. If they find anything, I am getting locked up
anyway,’” “‘They want me because of my history,’” “‘You know, and after I was
gone for all those years, five and a half years,’” and “‘I can never get on the
stand because of my history.’”
The trial court
ruled the last three statements did not refer to defendant’s parole status and
deferred ruling on the first statement until further review of the tape. After listening to the tape seven times, the
trial court determined the first statement did not refer to defendant’s being
on parole, but instead addressed other people who defendant believed set him up. Noting it had already deleted specific
references to defendant’s criminal history, the trial court denied the motion.
Defendant contends
the four statements were prejudicial references to his criminal history. We disagree.
References to a
defendant’s criminal history contain an inherent danger that the jury will
convict him based on his past conduct. (
75.) A mistrial should be granted if the
court is apprised of prejudice that it judges incurable by admonition or
instruction. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions. (Ibid.) On review, we apply the deferential abuse of
discretion standard. (
We begin by noting
defendant forfeited his claim by failing to identify the alleged improper
statements before the third tape was played.
At the in limine hearing on the tapes, the trial court told defense
counsel he could request that particular parts of the tape be excised. When the tapes were again addressed at trial,
the court ordered deletion of several references to defendant’s criminal
history. In reply, defense counsel did
not identify the four statements that were not deleted, instead waiting to
raise them in his mistrial motion after the tape was played. Failing to raise these specific objections to
the tape before it was played forfeits those contentions on appeal. (Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 548.)
Defendant’s
contention also fails on the merits.
Having listened to the recording in question, we agree with the trial
court that the first statement, while difficult to understand, refers to the
parole status of the people who he believed informed on him. The remaining statements, general references
to defendant’s history or his having been gone for five and one-half years,
contain no specific reference to prior criminal conduct. Such general references to defendant’s past
are not so prejudicial as to warrant a mistrial. In sum, the trial court committed no abuse of
discretion.
DISPOSITION
The judgment is
affirmed.
RAYE , P. J.
We concur:
BUTZ , J.
MAURO , J.
name="_ftn1" title="">[1] The phone bill found in the dresser was not
for this phone.
name="_ftn2" title="">[2] Since the trial court struck the second text
from Rebecca30, we do not need to decide whether the same analysis
applies. The text from defendant in
reply to Rebecca30’s initial text was admissible as a party admission. (Evid. Code, § 1220.)
