Filed 10/4/17 P. v. Martinez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
Plaintiff and Respondent,
HECTOR LUIS MARTINEZ,
Defendant and Appellant.
Super. Ct. No. SS140085)
A jury convicted defendant Hector Luis Martinez of first degree murder (Pen. Code, § 187, subd. (a)) for stabbing to death a fellow hotel guest with a screwdriver. Defendant contends the trial court abused its discretion by denying his in limine motion to exclude evidence of records generated by hotel door keycard readers. He also contends that his constitutional right to due process was violated because police failed to preserve evidence that was potentially exculpatory. For the reasons explained, we find no error and will affirm the judgment.
The victim, Bobby Dick, was staying at a hotel in Salinas on December 4, 2015. A little after 9:00 p.m., he stopped at a nearby store to buy some snacks, drinks, and cigarettes. The keycard reader for the door of his hotel room recorded an entry to the room at 9:22 p.m.
Defendant checked into the hotel sometime after 11:00 p.m., and the keycard reader for the room he was assigned recorded an entry just past midnight. Sometime between 1:00 a.m. and 2:00 a.m., the front desk clerk received a noise complaint from a guest who reported hearing an alarm going off. The desk clerk went outside to investigate, but could not determine the source of the noise. When she passed Dick’s room, she noticed the door was ajar. She also remembered seeing defendant walking around when she was seated at the front desk, a couple of hours after he checked in. Around 2:30 a.m., the guest who complained about the alarm noise discovered it was coming from Dick’s truck, which was backed into a parking spot with the key in the ignition, and making a beeping sound because it was in reverse gear. The driver side door was unlocked, so the guest reached in, turned the key to the off position, and went back to bed.
At 6:00 a.m., defendant stole a car from a convenience store parking lot near the hotel. He drove to a gas station, and called 911. He told the dispatcher that he was calling because his life was in danger and hundreds of people were following him. Police officers arrived and attempted to take defendant into custody because he matched the description of the car theft suspect. He resisted their efforts, but was eventually subdued with a Taser and arrested.
Around 1:00 p.m., a member of the hotel housekeeping staff found Dick’s body lying in a pool of blood in the bathroom of his hotel room. He had been stabbed 130 times with a pointed instrument, likely a screwdriver. A trail of blood indicated he was attacked near the front entryway and then dragged into the bathroom. His jacket, a wallet, and a credit card were missing.
When police searched defendant’s backpack after his arrest, they found a keycard sleeve with Dick’s room number written on it. After learning that the hotel door lock system records the time whenever a keycard unlocks a door, police obtained from hotel management a printout showing the keycard activity for defendant’s room, as well as Dick’s. The keycard reader for defendant’s room showed entries (in addition to the initial entry after he checked in) at 12:34 a.m.; 1:22 a.m.; 1:31 a.m.; 1:32 a.m.; 1:37 a.m.; 1:51 a.m.; and 1:59 a.m. The keycard reader for Dick’s room showed several entries during the same time span––at 1:25 a.m.; 1:34 a.m.; and 1:57 a.m. A spot of blood found on defendant’s sleeve and another found on the strap of his backpack were tested for DNA, and the tests indicated the blood was Dick’s.
After the DNA results were obtained, defendant was charged with first degree murder. At trial, the prosecution argued that defendant killed Dick around 1:30 a.m. in the course of robbing him and attempting to steal his truck. The jury convicted defendant of first degree murder and the trial court sentenced him to an indeterminate term of 25 years to life in prison.
A. No Abuse of Discretion in Admitting Keycard Reader Evidence
Defendant contends the trial court erred by denying his motion to exclude evidence of records generated by the keycard readers, which showed multiple entries to his room and to the victim’s room during the timeframe when the prosecution argued the murder occurred. We review a decision regarding the admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.) An abuse of discretion is shown only where the trial court’s action “ ‘transgresses the confines of the applicable principles of law.’ ” (In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)
Defendant moved in limine to exclude the keycard records, asserting there was no evidence to show the system was functioning properly at the time the records were created. The trial court held a hearing under Evidence Code section 402 and took evidence regarding how the keycard readers functioned and how the records were generated. The prosecution called the hotel manager, who testified he was familiar with how the lock system operated and knew how to access information it recorded because he regularly extracted data from it––about every two months for the past fifteen years.
The manager testified that each time a keycard is swiped through the reader installed on the door, the time of the swipe is recorded in the reader’s memory. A piece of equipment called a coder is used to pull the data from each lock, which can then be printed out in hard copy format from the coder. The internal clocks for the keycard readers are frequently updated to ensure accuracy, and keycards are programmed to allow guests into their rooms only after the assigned check-in time––meaning that if the clocks of the keycard readers were inaccurate, guests might not be able to get into their rooms. The manager always found the system to be functioning properly, and the entry times it recorded were always within five to eight minutes of the actual time. The reader for the lock on defendant’s room was four minutes off; it showed a time four minutes later than the actual time. After considering the manager’s testimony, the trial court denied defendant’s in limine motion, finding that the evidence established the keycard reader system was functioning properly and the records it generated were therefore admissible.
“Of course, only relevant evidence is admissible. [citation.] Sometimes the relevance of evidence depends on the existence of a preliminary fact.” (People v. Lucas (1995) 12 Cal.4th 415, 466.) When the relevance of proffered evidence depends on the existence of a preliminary fact, the proponent of the evidence has the burden of producing evidence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds the fact has been established. (Evid. Code, § 403, subd. (a)(1).) “The court should exclude the proffered evidence only if the ‘showing of preliminary facts is too weak to support a favorable determination by the jury.’ ” (People v. Lucas, supra, 12 Cal.4th at p. 466.)
In this case, the relevance of the proffered evidence––records showing the approximate time of each entry to the rooms––depends on proof of the preliminary fact that the computer system that created those records was functioning properly. Unless the system logged the time of entry reasonably accurately, the times shown on the system printout have no relevance. In arguing that the evidence should not have been admitted, defendant discusses Evidence Code section 1552, which deals with the authentication of electronic evidence and provides that a printed representation of computer data is presumed to be accurate. As he correctly notes, that section alone does not establish admissibility because it only creates a presumption that a printout accurately reflects the content of a computer’s memory. (See People v. Goldsmith (2014) 59 Cal.4th 258, 269, citing People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450.) The presumption does not extend to the underlying accuracy of the stored information––only the reliability of the printing function. On objection, the proponent of the evidence must still prove the foundational fact that the computer was operating properly. (People v. Hawkins, supra, 98 Cal.App.4th 1428, 1450.)
Here, the prosecution did present evidence to show the keycard reader system was functioning properly. The hotel manager testified that the times recorded by the keycard readers were accurate, at least within several minutes. Overall, the evidence was not so weak as to preclude the jury’s reliance on the keycard reader evidence.
Defendant argues that notwithstanding the manager’s testimony one could reasonably conclude that the system did not record the correct times, because the way the manager checked the system was not adequate to ensure precise accuracy. He further argues that even a slight inaccuracy would undermine the prosecution’s case, since a few minutes’ difference would be enough to show defendant did not have time to get from one room to the other and commit the murder. But those arguments are properly directed to the weight the jury should give the evidence, not its admissibility. (People v. Lucas, supra, 12 Cal.4th at pp. 466–467 [The preliminary fact questions listed in Evidence Code section 403, subdivision (a) are not finally decided by the judge because they are jury questions involving the credibility of testimony or the probative value of evidence admitted on ultimate issues; it is the jury’s function to determine the effect and value of the evidence presented.].) The trial court did not err by admitting the keycard reader evidence and allowing the jury to determine the effect of that evidence on the ultimate issues.
B. No Due Process Violation in Not Obtaining Keycard Reader Evidence For Other Rooms
Defendant alternatively contends that if the keycard reader evidence was admissible, his constitutional right to due process was violated because law enforcement did not preserve evidence potentially favorable to him: the keycard reader records for the other rooms that were occupied on the night of the murder. As the Attorney General points out, defendant forfeited that issue by failing to raise it in the trial court. But since defendant also argues ineffective assistance of counsel based on the failure to preserve the issue for review, we will address it on the merits in the interest of judicial economy. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
Defendant’s contention falls within “ ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ ” (Arizona v. Youngblood (1988) 488 U.S. 51, 55 (Youngblood), citing United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.) The due process clause of the Fourteenth Amendment to the United States Constitution requires that the prosecution disclose to the defendant any “material exculpatory evidence” within its possession. (Brady v. Maryland (1963) 373 U.S. 83, 87.) But when evidence that might have been exculpatory is lost before its exculpatory value can be determined, due process is violated only if the police acted in bad faith in failing to preserve the evidence. (Youngblood, at p. 58.) That bad faith requirement stems in part from the Supreme Court’s “unwillingness to read the ‘fundamental fairness’ requirement of the Due Process Clause [citation] as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” (Ibid.)
Defendant’s complaint of lost evidence arises from the fact that the keycard reader system has a limited memory, and, after logging 250 key swipes, it overwrites the previous data as new swipes occur. As a result, the saved entry times for each lock are overwritten approximately every month. In the course of their investigation, police initially obtained the keycard records for defendant’s room and the victim’s room. They later asked the hotel management for records for the other occupied rooms, but the hotel was unable to produce them because by that time the data had been overwritten.
Given those facts, defendant’s due process contention fails for two reasons. First, the potential exculpatory value of the records at the time they were overwritten is speculative at best. The records are equally likely to have been inculpatory of defendant, since they may have shown that none of the other guests left their rooms during the relevant time period. Defendant therefore cannot establish bad faith on the part of law enforcement as required under Youngblood. (Youngblood, at pp. 56–57, fn. * [“The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”].) Second, defendant’s contention does not involve evidence that was in the possession of law enforcement and then lost; rather, it involves evidence police never obtained. Importantly, defendant does not assert that police failed to preserve evidence in their possession (as would be required for a due process violation), but rather that they failed to pursue evidence. Following defendant’s logic, failure by police to obtain a statement from every witness to a crime would be a due process violation if one of those witnesses––who might have disclosed exculpatory information if questioned––later could not be located. That would stretch the Youngblood holding beyond its limits. (See id. at p. 58 [declining to impose on police an absolute duty to retain all material that might be of evidentiary significance in a prosecution].)
Defendant complains that the keycard reader records were lost because the police immediately focused their investigation on him and ignored evidence that might have indicated the perpetrator was someone else. But that is an argument regarding reasonable doubt as to defendant’s guilt. It does not establish a constitutional violation. Trial counsel argued to the jury that defendant was incorrectly identified as the perpetrator because the police investigation was inadequate, and the jury disagreed.
The judgment is affirmed.
Rushing, P. J.
H042614 - People v Martinez
 The Attorney General argues alternatively that the evidence is admissible under the business records exception to the hearsay rule (Evid. Code, § 1271). But the evidence is not hearsay in the first place because it is a computer-generated record, not the statement of a person. (People v. Goldsmith, supra, 59 Cal.4th at p. 274 [evidence that does not constitute the statement of a person is not hearsay]; see also People v. Hawkins, supra, 98 Cal.App.4th at p. 1449 [“The Evidence Code does not contemplate that a machine can make a statement.”].) The business records exception therefore has no application here.