The People v. Zavala , 156 Cal. Rptr. 3d 841 ( 2013 )

Filed 5/13/13
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062125
Plaintiff and Respondent,
v. (Super. Ct. No. SCD232456)
ANGEL ZAVALA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Honorable
Michael T. Smyth, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Gary W.
Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
This case presents a matter of first impression. Angel Zavala argues a computer
printout produced by human query of a computer system that maintains cell phone data in
the regular course of business does not fall within the business records exception under
Evidence Code section 1271 to the general rule prohibiting hearsay evidence. Here, we
hold a printed spreadsheet of call data produced for purposes of trial does fall within the
business records exception where the underlying data is kept and maintained by a reliable
computer program in the regular course of business and the other prongs of Evidence
Code section 1271 are met.
A jury convicted Zavala of five counts of robbery (Pen. Code,1 § 211) and one
count of burglary (§ 459). As to each count of robbery, the jury found Zavala was a
principal in the commission of the offenses and was vicariously liable within the meaning
of section 12022, subdivision (a)(1). Zavala also admitted one prior prison term, an
enhancement within the meaning of section 667, subdivision (a)(1) and section 668. The
court denied probation and sentenced Zavala to 22 years eight months in state prison.
Zavala appeals, contending the trial court erred by admitting (1) Zavala's and
Freddie Argallon's cell phone records and any testimony about the records, and (2)
Detective Kevin Maxwell's testimony regarding the call log information seen on Zavala's
cell phone. Zavala argues the cell phone records and Maxwell's testimony were hearsay
and should have been excluded. We conclude the evidence of Zavala's and Argallon's
cell phone records fell within the business records exception to the hearsay rule, and that
1 Statutory references are to the Penal Code unless otherwise specified.
2
Maxwell's testimony was admitted for a proper and limited purpose. Accordingly, we
affirm the judgment.
FACTS
Zavala and Argallon together committed three robberies. At trial, Maxwell
testified regarding the ensuing investigation. Maxwell stated during Argallon's arrest, he
seized Argallon's cell phone and discovered numerous phone calls that connected
Argallon to the robberies. He also found several calls to Zavala. Later, Maxwell seized
Zavala's cell phone and found Argallon's phone number on the call log and phone calls
made to the locations where the robberies took place.
Cell Phone Record Evidence
Sprint records custodian Joseph Trawicki also testified during trial regarding
Zavala's Sprint cell phone records. Trawicki stated he had worked for Sprint for eight
and a half years as a custodian of records and was familiar with the way Sprint maintains
its cell phone records, cell cite information, and text messaging records. Sprint uses a
computer system that generates records of each phone call at the time it is made and then
transmits the data to a call detail record archive. Trawicki testified that Sprint collects
and maintains the call detail records of all its customers for billing purposes and keeps
those records in the regular course of business.
Trawicki also described how he obtains those records in response to legal
demands. When Sprint receives a search warrant or court order, the warrant or order is
processed and evaluated for validity and then placed into a subpoena tracking system. A
custodian or subpoena analyst then runs a query of the computer system that maintains
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the call records, usually by entering a specific telephone number. Upon query, the
computer system automatically transfers the data relating to that phone number from the
call detail record archive into an excel spreadsheet. The custodian or subpoena analyst
then "packages" the document by burning it onto a CD, emailing or faxing the document
to the entity that requested it.
Elizabeth Faraimo, a customer operations manager at Cricket Communications,
also testified at trial regarding Argallon's cell phone records. Like Sprint, Cricket uses a
computer system that records phone call data at the time of the call on a database. That
call data is kept in the regular course of business, and upon legal demand, the data is
accessed and a record of that data is produced for trial.
DISCUSSION
I
ADMISSION OF CELL PHONE RECORD EVIDENCE
At trial, the court admitted Zavala's Sprint cell phone records and Argallon's
Cricket cell phone records into evidence over hearsay objections by Zavala, finding the
records fell within the business record exception to the hearsay rule under Evidence Code
section 1271. Zavala challenges the court's admission because a human query was
required to retrieve the information from the computer's detail record archive, and
Zavala's and Argallon's call records were produced in the form of an excel spreadsheet.
A. Standard of Review
A trial judge is vested with wide discretion in determining whether a proper
foundation has been laid for admission of business records under the business records
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exception. (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1450.) "Where
the trial court has determined that the foundation laid was sufficient to support the
introduction of evidence under the business records exception, and the record reasonably
supports this determination, its conclusion is binding on the appellate court." (Ibid.)
Determining whether a proper foundation has been laid for the admission of business
records under Evidence Code section 1271 is within the trial court's discretion and "will
not be disturbed on appeal absent a showing of abuse." (County of Sonoma, supra, at
p. 1450.)
B. The Business Records Exception
Evidence Code section 1271 provides that "[e]vidence of a writing made as a
record of an act, condition, or event is not made inadmissible by the hearsay rule" if it
meets all of the following requirements: "(a) The writing was made in the regular course
of a business; (b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its
preparation; and (d) The sources of information and method and time of preparation were
such as to indicate its trustworthiness."
" 'Whether a particular business record is admissible as an exception to the hearsay
rule . . . depends upon the "trustworthiness" of such evidence, a determination that must
be made, case by case, from the circumstances surrounding the making of the record.'
[Citations.]" (People v. Matthews (1991) 229 Cal.App.3d 930, 939.) "The foundation for
admitting the record is properly laid if in the opinion of the court, the sources of
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information, method, and time of preparation were such as to justify its admission."
(People v. Williams (1973) 36 Cal.App.3d 262, 275.)
C. Analysis
California cases have held generally that computer printouts are admissible when
they fit within a hearsay exception as business records under Evidence Code section
1271. (People v. Lugashi (1988) 205 Cal.App.3d 632, 641-642.) However, there is no
California case addressing the issue raised here: whether a computer printout of
automatically generated and stored call data falls under the business records exception
where the printout is produced by human query for use at trial. Courts in other
jurisdictions have considered this issue, and the majority of them conclude a printed
compilation of data produced by human query for use at trial falls under the business
records exception provided the underlying data is kept by a reliable computer software
program in the regular course of business.
The Sixth Circuit considered a hearsay objection to computer generated cell phone
records in United States v. Nixon (2012) 694 F.3d 623, 633-635. There, the trial court
admitted a printout of account information under the business records exception in
Federal Rules of Evidence, rule 803(6)2 where the information was stored in a computer
database and a manager ran a query to create a spreadsheet for trial. (Nixon, supra, at
2 In regard to the issue presented here, the differences between the admission of
evidence under California and federal law is insignificant. Both Evidence Code section
1271 and Federal Rules of Evidence, rule 803(6), define a business broadly and require
the entry to be made in the regular course of business at or near the time the recorded
event took place.
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p. 633.) The Sixth Circuit upheld the admission of the evidence, holding that while the
record introduced at trial was not created until a person ran a query of the database, the
printout was admissible under the business records exception because the electronic
version of the underlying data was created and stored in the regular course of business.
(Id. at pp. 634-635; see U'Haul Intern., Inc. v. Lumbermens Mut. Cas. Co. (9th Cir. 2009)
576 F.3d 1040, 1043 ["evidence that has been compiled from a computer database is also
admissible as a business record, provided it meets the criteria of [Fed. Rules Evid.], [r]ule
803(6)"];United States v. Fujii (7th Cir. 2002) 301 F.3d 535, 539 ["Computer data
compiled and presented in computer printouts prepared specifically for trial is admissible
under [Fed. Rules Evid.], [r]ule 803(6), even though the printouts themselves are not kept
in the ordinary course of business."]; Potamkin Cadillac Corp. v. B.R.I. Coverage Corp.
(2nd Cir. 1994) 38 F.3d 627, 632 ["A business record may include data stored
electronically on computers and later printed out for presentation in court, so long as the
original computer data compilation was prepared pursuant to a business duty in
accordance with regular business practice."].)
The District of Columbia Court of Appeals in Dutch v. United States (2010) 997
A.2d 685, 690, likewise held the fact a computer system may not contain the actual
document in the precise hard copy form in which the data is presented in court does not
render the hard copy evidence inadmissible. There, the court held that the detailed
testimony about how the system functions to gather and store the data, together with
testimony about how the data was collected, established how the records were created
and what business purpose they served. (Id. at p. 689.) The court noted that "in an
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increasingly technological world, courts would well nigh eviscerate the exception if they
adopted a contrary policy." (Id. at p. 690.)
The court in Commonwealth of Penn. v. McEnany (1999) 732 A.2d 1263 also
considered a similar issue to the one before us. The court held the act of translating the
computer's information from binary files into English did not render a computer printout
of call data inadmissible because the underlying data was systematically recorded. (Id. at
p. 1273.) The court was unwilling to adopt a more narrow interpretation of the exception
because then "otherwise trustworthy evidence would be excluded simply because it
needed to be translated so as to be understandable by the finder of fact." (Id. at p. 1273,
fn. 3.) The court reasoned such an interpretation would contradict the purpose of the
business records exception to permit records to be admitted where the sources of the
information, method, and time of preparation justify the records' admission. (Ibid.)
Here, we agree with the reasoning in the cases discussed above and conclude that
a printed compilation of call data produced by human query for use at trial falls under the
business records exception where the underlying data is automatically recorded and
stored by a reliable computer program in the regular course of business. In this case, the
printed excel spreadsheet produced at trial of the call data recorded by Sprint's and
Cricket's computer systems fell within that exception.
The evidence at trial established the call data was automatically generated by
Sprint's computer system at or near the time each call was made. On cross-examination
Trawicki stated, "the switch or the -- which is basically a giant set of computers that
processes hundreds of thousands of calls every hour, generates these logs at the time of
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each call. The log is generated at the time the call -- you either dial or the call comes into
the network and your phone starts to ring." Trawicki went on to state, "that information
over the period of the next four to six hours is then dumped to a tape backup system and
then further dumped into the call detail record archive, at which point we can then run a
query against the archive and retrieve that information." Similarly, Faraimo testified that
calls on the Cricket system "are stored at or near the time of the event on a database, and
then they are accessed per legal request."
Further, Trawicki and Faraimo were the custodians of the data produced by Sprint
and Cricket respectively, and each provided ample testimony as to the mode of the
preparation of the documents entered at trial. Each testified as to the details of the call
data recording systems and how and when the data was collected and stored. Finally,
Trawicki stated at trial that the computer records were maintained for billing purposes
and had to be accurate as a method of reporting call activity, and Faraimo stated Cricket
had an interest in maintaining accurate call records for legal purposes. The trial court
thus did not abuse its discretion in finding that sufficient foundation was laid to establish
admissibility under the business records exception in Evidence Code section 1271. That
the documents ultimately entered in trial were necessarily produced by human query does
not render the data inadmissible because the underlying data itself was not produced by
human input, but rather, was recorded by the computer system itself each time a user
made a call.
There is no merit to Zavala's argument that the computer printout is untrustworthy
because it was produced in the form of an excel spreadsheet. At trial, Trawicki explained
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that generally, an excel spreadsheet can be manipulated. However, no evidence was
introduced to show the printed excel spreadsheets introduced were themselves
manipulated, inaccurate, or unreliable in any way. We thus conclude the admission of
this evidence was not error, and it neither prejudiced defendant nor deprived him of a fair
trial.
II
ADMISSION OF DETECTIVE MAXWELL'S TESTIMONY
Zavala also contends Maxwell's testimony at trial regarding the call log
information seen on Zavala's cell phone should have been excluded because the
statements were hearsay. Zavala argues that the trial court abused its discretion by
admitting the testimony. We disagree.
A. Standard of Review
As noted above, "an appellate court applies the abuse of discretion standard of
review to any ruling by a trial court on the admissibility of evidence, including one that
turns on the hearsay nature of the evidence in question [citations]." (People v. Waidla
(2000) 22 Cal.4th 690, 725.) " 'A trial court's ruling will not be disturbed, and reversal of
the judgment is not required, unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' "
(People v. Hovarter (2008) 44 Cal.4th 983, 1004.) Further, where the court offers the
jury an instruction regarding how to use particular evidence, the jury is presumed to have
followed the instruction to decide the matter impartially and solely on the evidence.
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(People v. Cline (1998) 60 Cal.App.4th 1327, 1336 [jury presumed to understand and
follow instructions].)
B. Detective Maxwell's Testimony
The Attorney General contends the testimony regarding the call records was not
hearsay but rather the call records were nonassertive conduct admissible to prove the cell
phone was an instrumentality in a criminal enterprise. We need not consider that
contention because, in this instance, the trial court admitted the testimony over the
hearsay objection for the limited purpose of explaining Maxwell's investigative steps.
Additionally, the court instructed the jury that the testimony "may be considered by the
jury to explain his investigation and how -- where it led him, if it led him to Mr. Zavala."
The court's decision to allow Maxwell's testimony while limiting the purpose of its use
for the jury was not arbitrary because the testimony explained the detective's steps in his
investigation. The court was well within its bounds to admit the evidence for that
purpose. Thus, the trial court exercised proper discretion in making its ruling, and there
has been no clear showing of abuse of discretion.
Because the court did not abuse its discretion in admitting the cell phone records
and allowing Maxwell's testimony, we do not address whether there was otherwise
insufficient evidence connecting Zavala to the robberies.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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