People v. Cook CA1/2 ( 2022 )

Filed 8/9/22 P. v. Cook CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A161600
EARL STANLEY COOK, JR.,
Defendant and Appellant. (San Mateo County Super. Ct.
No. 20–SF–001729–A)
A jury found defendant Earl Stanley Cook, Jr. (defendant) guilty of
elder abuse, making criminal threats, and dissuading a witness. The victim
in all three offenses was defendant’s father, Earl Cook, Sr. (Cook, Sr.), and he
refused to testify against his son at trial.
Defendant raises two evidentiary claims on appeal. He contends the
trial court erred in admitting evidence of (1) Cook, Sr.’s statements to the
police that defendant threatened to kill him and (2) a text message Cook, Sr.
received after defendant was arrested.
Finding no error, we affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
January 29 Incident
In 2020, Karina Fuller and her mother lived in a two-story apartment
building on Newell Road in East Palo Alto.1 The building has an indoor lobby
with a staircase to the second floor. Cook, Sr. lived upstairs from the Fullers,
and his balcony was directly above theirs.
On the evening of January 29, Karina and her mother were in their
apartment when they heard a sudden commotion upstairs. There was loud
banging and yelling. Karina heard Cook, Sr. yell for help, and she called 911.
While she was on the phone, Karina heard a loud thud and “saw a dark
figure” on the balcony of their apartment. Karina’s mother also heard a
“boom” and saw that a “guy jumped onto our balcony.” She thought she saw
a gun in the man’s hand, and she became very scared. Karina grabbed her
mother, and they hid in a bedroom. Karina told the 911 operator that
someone had jumped on her balcony and she was barricading herself in her
room. Her mother saw the person who jumped onto their balcony walk into
their apartment from the balcony. Karina testified that, from her bedroom,
she “heard him walking out and the [front] door closed,” suggesting that the
person who jumped on the balcony walked through the Fullers’ apartment
and left through their front door.
The same evening, Mosese Vainuku, a first-floor resident of the
apartment building, heard a noise and then heard someone call for help from
inside the building. Vainuku opened his front door and saw a person coming
down the stairs “all covered in blood.” The man was stumbling, and he kept
mumbling, “My son did this.” Vainuku told the man to sit down, and he went
1 All dates are in 2020.
2
back into his apartment to get his phone to call 911 and a t-shirt to wipe the
blood off the man’s face.
Police Response
East Palo Alto Police Officer Bobby Magami and about five other
officers, including Officer Joseph Klein, were dispatched to the apartment
building around 6:30 p.m. The original report from dispatch was of a
prowler, and as Magami was coordinating a response, a report of a possible
stabbing came through.
Magami found Cook, Sr. in the lobby of the building, his head, face, and
neck covered in blood, and his shirt bloodstained. Cook, Sr.’s face was
swollen, and he seemed distraught and was gasping for air. Magami’s initial
concerns were the victim’s welfare and health and identifying and
apprehending a suspect.
Cook, Sr. told Magami he was assaulted by his son and identified
defendant by name. He said, “He was on top of me and . . . he just beat me
up.” Cook, Sr. was concerned about retrieving his wallet, phone, and keys
from his apartment; he said defendant had keys to his apartment and he had
“been trying to take my car.” Cook, Sr. told Magami that he was “fighting for
[his] life” and that defendant threatened to kill him. Cook, Sr. reported, “. . .
he said, ‘I’m going to kill you.’ He would have I think.”
Magami asked for a description of the perpetrator and where he went.
Cook, Sr. said his son was 39 years old, six feet two inches tall and about 200
pounds, wearing gray sweats. He indicated defendant was headed toward 7-
Eleven on Newell by foot. Magami asked if his son had a weapon, and Cook,
Sr. said no. Magami radioed in the description of the suspect and his
direction of travel.
3
After learning that the suspect was wearing sweatpants and had
walked towards 7-Eleven, Officer Klein walked down Newell Road to search
for the suspect. Klein found defendant within four minutes. Defendant was
wearing gray sweatpants, it appeared there was dried blood on his pants and
shirt, and his hands were swollen and purple and appeared to be covered in
dried blood. Defendant initially said his name was Calvin. Defendant
swayed and smelled of alcohol, and Klein arrested him. Klein returned to the
apartment building and showed Cook, Sr. a photograph of defendant; Cook,
Sr. confirmed it was his son and was the person who had beaten him.
Cook, Sr. was taken to the hospital by ambulance. He told the
emergency doctor he had been punched in the face multiple times by his son
who was intoxicated. The doctor noted that Cook, Sr. had swelling of the
upper and lower lips, swelling around the right ear, and an abrasion of the
left elbow, and he required five stitches for a right eyebrow laceration. Cook,
Sr. also had a minimally displaced fracture of the left index finger.
Text Message Received by the Victim
Two days later, Officer Magami conducted a follow-up visit to Cook,
Sr.’s home. Cook, Sr. showed Magami a text message he received on his cell
phone at approximately 8:00 p.m. on January 30. The text had come from a
number stored under the name “Tenise” on Cook, Sr.’s phone.
The text read: “I know your son can be a handful at times. That’s still
your son and he has some demons he is dealing with. We all do. I just ask
that you don’t press charges to make his situation worse. If he gets out of
this, I will make sure that he doesn’t come back to your house or that you will
ever have to deal with going through something like this again with him.
That’s your son. He loves you and you love him at the end of the day.”
4
Trial
The San Mateo District Attorney charged defendant with elder abuse
(Pen. Code, § 368, subd. (b)(1); count 1), making criminal threats (id., § 422,
subd. (a); count 2), and dissuading a witness (id., § 136.1, subd. (b)(2); count
3). It was alleged defendant had prior strike convictions (id., §§ 667, subds.
(b)–(i); 1170.12) and he committed the current offenses while on felony
probation (id., § 1203, subd. (k)).
At trial, Cook, Sr. refused to testify against his son. The jury heard
from Cook, Sr.’s neighbors (the Fullers and Vainuku), the emergency doctor
who treated Cook, Sr., and Officers Magami and Klein. The jury also viewed
recordings taken by the officers’ respective body-worn cameras showing
Magami’s interactions with Cook, Sr. on the evening of January 29th and
Klein’s arrest of defendant.
In addition, the prosecution called a detective with the San Mateo
Sheriff’s Office who monitors inmate calls at the county jail. He testified
about a recorded jail call between defendant and a woman whose phone
number was registered with the jail telephone system under the name Tenise
Cook. The recorded call, which took place around 7:30 p.m. on January 30,
was played for the jury. In the call, defendant said to the woman, “Tell him
to go to the DA’s office and not press any charges. You can keep the
restraining order if you want to. I don’t care about that. I’m not trying to be
around him, but tell him not to press any charges.”2
The transcript of the call is not part of the appellate record, and the
2
detective did not testify about what was said during the recorded jail call.
The quote and the time of the call are taken from the prosecutor’s closing
argument, during which she played the jail call again and recited what
defendant said. In respondent’s appellate brief, the Attorney General quotes
the prosecutor’s recitation of defendant’s statement made during the jail call,
5
The jury found defendant guilty as charged. In a bifurcated
proceeding, the trial court found true enhancement allegations that
defendant had a prior strike conviction and was on felony probation when he
committed the offenses. Defendant was sentenced to five years, four months
in prison.
DISCUSSION
A. Admission of the Victim’s Out-of-Court Statements that Defendant
Threatened to Kill Him
Defendant contends the trial court erred in admitting Cook, Sr.’s
statements that defendant threatened to kill him.3 He claims evidence of
Cook, Sr.’s statements about what defendant said to him constitutes
inadmissible “double hearsay.” He argues that, as a matter of state
evidentiary law, Cook, Sr.’s statements were not spontaneous or a description
of physical injury and, as a constitutional matter, they were testimonial and
therefore their admission violated his Sixth Amendment right to confront
witnesses. We are not persuaded.
1. Background
In competing motions in limine, defendant sought to exclude evidence
of Cook, Sr.’s out-of-court statements on the ground such statements would
violate his Sixth Amendment right to confront the witness, and the
prosecution sought to admit Cook, Sr.’s statements to law enforcement under
the hearsay exceptions for spontaneous statements (Evid. Code,4 § 1240) and
and defendant does not object or dispute the accuracy of the statement in his
reply.
3Defendant implicitly concedes that evidence of Cook, Sr.’s statements
describing the attack and identifying defendant as the perpetrator was
properly admitted.
4 Further undesignated statutory references are to the Evidence Code.
6
descriptions of infliction or threat of physical injury made by an unavailable
witness (§ 1370). The prosecution argued the Sixth Amendment did not
apply because Cook, Sr.’s statements to law enforcement were not
testimonial.
Cook, Sr.’s unavailability as a witness was established in a hearing
outside the presence of the jury. Cook, Sr. testified he was 65 years old,
identified defendant as his son, and stated he loved his son and no one “wants
their child to get in trouble.” However, when asked by the prosecutor
whether he knew someone named Tenise, he refused to testify. The trial
court found Cook, Sr. in contempt of court.
The trial court ruled Cook, Sr.’s statements to the police were
admissible under section 1240 because Cook, Sr. “was clearly still under the
immediate aftereffects” of the attack. It found the statements were not
testimonial under the Sixth Amendment, observing the officers “were dealing
with an ongoing emergency”: they had “an injured victim who had been
bleeding profusely . . . and is covered in blood,” they were trying to determine
whether the suspect was armed, “they [we]re trying to locate the suspect who
fled the scene,” and “there [wa]s a concern for continued victimization of the
complaining witness in this case.” The court also found Cook, Sr.’s
statements admissible under section 1370 because they appeared “to narrate
the infliction of physical injury upon the declarant” and Cook, Sr.’s refusal to
testify rendered him unavailable.
2. Analysis
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.” (§ 1200, subd. (a).) Hearsay evidence is generally
7
inadmissible, but there are many exceptions to this rule. (People v. Grimes
(2016) 1 Cal.5th 698, 710.)
a. Evidence of Defendant’s Threat to Kill the Victim Was Not
Inadmissible Hearsay
Evidence that defendant said to Cook, Sr. that he was going to kill him
was not hearsay because it was not offered to prove the truth of what
defendant said; it was offered to show that defendant made the threat. The
offense of making criminal threats does not require that the defendant
actually intend to harm the victim (Pen. Code, § 422, subd. (a)), and evidence
in this case that defendant said he was going to kill Cook, Sr. obviously was
not offered to establish the truth of that statement since defendant,
fortunately, did not go on to kill Cook, Sr. Moreover, as the Attorney General
points out, even if evidence of defendant’s threat was deemed hearsay
evidence, it would be admissible under section 1220, the exception to the
hearsay rule for admissions by a party. In short, the admission of evidence of
defendant’s out-of-court threat to Cook, Sr. did not violate the rule against
hearsay evidence.
b. Evidence of the Victim’s Statements Was Admissible Under
Sections 1240 and 1370
In contrast to defendant’s statement threatening to kill, Cook, Sr.’s own
statements that defendant threatened him clearly were offered to prove the
truth of the matters stated. Evidence of Cook, Sr.’s statement was therefore
admissible only if an exception to the hearsay rule applied.
As we have described, the trial court admitted evidence of Cook, Sr.’s
statements to law enforcement under the hearsay exceptions for
(1) spontaneous statements and (2) descriptions of infliction or threat of
physical injury made by an unavailable witness. We review the court’s
rulings for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983,
8
1007–1008 [evidentiary ruling “ ‘that turns on the hearsay nature of the
evidence in question’ ” is reviewed for abuse of discretion].)
Section 1240 provides that “[e]vidence of a statement is not made
inadmissible by the hearsay rule if the statement” “[p]urports to narrate,
describe, or explain an act, condition, or event perceived by the declarant”
and “[w]as made spontaneously while the declarant was under the stress of
excitement caused by such perception.”
“ ‘Whether the requirements of the spontaneous statement exception
are satisfied in any given case is, in general, largely a question of fact.’ ”
(People v. Mataele (July 21, 2022, S138052) __ Cal.5th __ [2022 WL 2840536,
at *19].) Our high court has explained, “ ‘The crucial element in determining
whether a declaration is sufficiently reliable to be admissible under this
exception to the hearsay rule is . . . the mental state of the speaker.’
[Citations.] ‘A number of factors may inform the court’s inquiry as to
whether the statement in question was made while the declarant was still
under the stress and excitement of the startling event and before there was
“time to contrive and misrepresent[,]” ’ such as ‘the passage of time between
the startling event and the statement, whether the declarant blurted out the
statement or made it in response to questioning, the declarant’s emotional
state and physical condition at the time of making the statement, and
whether the content of the statement suggested an opportunity for reflection
and fabrication.’ ” (Ibid.)
Defendant argues Cook, Sr.’s statements about defendant’s threat were
not spontaneous because they occurred in the latter part of his interaction
with Officer Magami. Defendant asserts that, by the point Cook, Sr. spoke of
defendant’s threat, Magami was asking detailed questions, which “deprived
Mr. Cook, Sr.’s response of the requisite spontaneity.” But “ ‘[n]either lapse
9
of time between the event and the declarations nor the fact that the
declarations were elicited by questioning deprives the statements of
spontaneity if it nevertheless appears that they were made under the stress of
excitement and while the reflective powers were still in abeyance.’ ” (People v.
Poggi (1988) 45 Cal.3d 306, 319.)
Here, the trial court viewed the body camera footage of Magami’s
interaction with Cook, Sr. before ruling, and it determined that Cook, Sr.
“was clearly still under the immediate aftereffects” of the attack when he
made his statements. Based on its review of the body camera recording, the
court observed that Cook, Sr. “at times was unfocused, and that appeared to
be a direct result of whatever trauma he had just experienced” and that he
sometimes had difficulty focusing on the officers’ questions. Thus, the court
properly considered whether Cook, Sr. “ ‘was still under the stress and
excitement of the startling event’ ” and before he had time to deliberate or
fabricate. (People v. Mataele, supra, 2022 WL 2840536, at *19.) The body
camera video is not part of the appellate record, but the transcript of the
recording supports the court’s finding. Cook, Sr. did not always respond to
the officers’ questions, and it seems he simply blurted out that defendant
threatened him. Magami asked how defendant got out of his apartment, and
Cook, Sr. responded, “Well I was trying to get out of the door. He was trying
to hold me inside and he—he said that he was . . .” “He said that he was
going to try—try to kill me.” There was no other question pending when
Cook, Sr. stated, “. . . he said, ‘I’m going to kill you.’ He would have I think.”
On this record, it was not an abuse of discretion for the trial court to
find Cook, Sr.’s statements that defendant threatened to kill him were made
spontaneously while under the stress of excitement caused by the traumatic
10
event. Accordingly, we find no error in the court’s ruling that evidence of the
statements qualified for the hearsay exception of section 1240.
We also find no abuse of discretion in the court’s ruling that Cook, Sr.’s
statements were admissible under the hearsay exception for threats of
infliction of injury. Section 1370 provides a hearsay exception where
(1) “[t]he statement purports to narrate, describe, or explain the infliction or
threat of physical injury upon the declarant,” (2) the declarant is unavailable,
(3) “[t]he statement was made at or near the time of the infliction or threat of
physical injury,” (4) “[t]he statement was made under circumstances that
would indicate its trustworthiness,” and (5) “[t]he statement was made in
writing, was electronically recorded, or made to a physician, nurse,
paramedic, or to a law enforcement official.” (§ 1370, subd. (a), italics added.)
Defendant asserts the requirements of section 1370 were not met
because Cook, Sr.’s statements that defendant threatened to kill him did not
describe a physical injury and lacked trustworthiness.5 Defendant simply
ignores the fact that section 1370 covers descriptions of “threat of physical
injury,” as well as infliction of injury. It goes without saying that defendant’s
statement that he was going to kill Cook, Sr. qualifies as a threat of physical
injury under section 1370, subdivision (a)(1).
Defendant argues Cook, Sr.’s statements lack trustworthiness because
they were made to officers as part of their investigation of potential charges
that could be brought against defendant. Defendant fails to demonstrate,
however, that the trial court abused its discretion in reaching a contrary
conclusion. The court found Cook, Sr. “was clearly still under the immediate
5Defendant does not dispute that Cook, Sr. was unavailable as a
witness, that the statements at issue were made near the time of the threat,
and that the statements were made to a law enforcement official.
11
aftereffects which gives reason to believe that his comments had that
additional air of trustworthiness.” It found Cook, Sr. was not contemplating
litigation when he made the statements, there was “no evidence to suggest
any bias or motive for fabricating the statements,” and his statements
generally were corroborated by the extent of his injuries and the blood found
on defendant’s hands and clothing.6 The court’s reasoning is supported by
the record, and we see no abuse of discretion.
c. The Victim’s Statements Were Not Testimonial Under the
Sixth Amendment
Next, defendant contends admission of Cook, Sr.’s statements violated
the Sixth Amendment because the statements were testimonial.
The Sixth Amendment “prohibits the introduction of testimonial
statements by a nontestifying witness, unless the witness is ‘unavailable to
testify, and the defendant had had a prior opportunity for cross-
examination.’ ” (Ohio v. Clark (2015) 576 U.S. 237, 243, italics added.)
“ ‘Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate
that there is no such ongoing emergency, and that the primary purpose of the
6 Section 1370, subdivision (b), states that “circumstances relevant to
the issue of trustworthiness include, but are not limited to, the following:
[¶] (1) Whether the statement was made in contemplation of pending or
anticipated litigation in which the declarant was interested. [¶] (2) Whether
the declarant has a bias or motive for fabricating the statement, and the
extent of any bias or motive. [¶] (3) Whether the statement is corroborated
by evidence other than statements that are admissible only pursuant to this
section.”
12
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.’ ” (Id. at p. 244.)
We independently review whether a statement is testimonial. (People
v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 825 (Ramirez Ruiz)
In Ramirez Ruiz, supra, 56 Cal.App.5th at pp. 822–825, our court
recently reviewed the case law on determining whether a statement is
testimonial for purposes of Sixth Amendment analysis. We gleaned the
following guidance from our high court: “When police are involved, the court
has instructed that we must evaluate the circumstances and the statements
and actions of the parties to determine ‘the primary purpose of both officer
and declarant’ based objectively on ‘ “the purpose that reasonable
participants would have had.” ’ . . . [W]e ‘should consider whether an
“ ‘ongoing emergency’ ” exists, or appears to exist, when the statement was
made,’ even ‘if hindsight reveals that an emergency did not, in fact, exist.’
[Citation.] ‘Whether an ongoing emergency exists is a “highly context-
dependent inquiry” ’ that may take into account whether the victim, first
responders, or the public remain at risk. [Citation.] Also, ‘regardless of the
existence of an emergency, the informality of the statement and the
circumstances of its acquisition are important considerations.’ ” (Id. at pp.
824–825.)
In Michigan v. Bryant (2011) 562 U.S. 344, 376, for example, the police
responded to a call that a man had been shot, and the United States Supreme
Court held that the shooting victim’s statement identifying the shooter was
not testimonial. (Id. at pp. 376, 348–349.) The court explained, “The
questions [the police] asked—‘what had happened, who had shot him, and
where the shooting had occurred,’ [citation]—were the exact type of questions
necessary to allow the police to ‘ “assess the situation, the threat to their own
13
safety, and possible danger to the potential victim” ’ and to the public,
[citations], including to allow them to ascertain ‘whether they would be
encountering a violent felon,’ [citation]. In other words, they solicited the
information necessary to enable them ‘to meet an ongoing emergency.’ ” (Id.
at pp. 375–376, fn. omitted.)
In this case, defendant argues there was no ongoing emergency when
Cook, Sr. told the police that defendant threatened him because defendant
“had been arrested, the scene was secured, and no one else was at risk.” But
the evidence shows a more chaotic and evolving situation where it appears
the police were still responding to an ongoing emergency when Cook, Sr.
made the statements at issue.
The initial report was of a prowler, and the Fullers reported that
someone had jumped on their balcony. When Magami arrived, he found
Cook, Sr. covered in blood, “distraught,” and “gasping for air.” Magami’s
concerns were Cook, Sr.’s welfare and health and identifying and
apprehending a suspect. Throughout the interaction, Cook, Sr. repeatedly
asked about his keys and wallet, and he stated his fear that his son would
return and steal his car. Right before Cook, Sr. said defendant threatened to
kill him, Magami asked, “How did your son get out of the apartment?” a
question that may have been directed at assessing the risk of the perpetrator
returning the same way. And, contrary to defendant’s assertion, it is not
clear from the transcript of the body camera recording that he had been
apprehended at the time Cook, Sr. made the statements at issue, or if
defendant had been apprehended, that the police were certain they had the
right person.
Another circumstance objectively indicating that the primary purpose
of Magami’s interaction with Cook, Sr. was to respond to an ongoing
14
emergency was the disorganized fashion in which the questioning occurred.
(See Michigan v. Bryant, supra, 562 U.S. at p. 366 [victim’s statements were
not testimonial where “the questioning . . . occurred in an exposed, public
area, prior to the arrival of emergency medical services, and in a disorganized
fashion”]; Ohio v. Clark, supra, 576 U.S. at p. 245 [“A ‘formal station-house
interrogation’ . . . is more likely to provoke testimonial statements, while less
formal questioning is less likely to reflect a primary purpose aimed at
obtaining testimonial evidence against the accused”].) Magami was not
interviewing Cook, Sr. at the police station or in the privacy of the victim’s
apartment; rather, the officer spoke to Cook, Sr. in the lobby of his apartment
building while he was still “dazed” from the attack and Magami was
coordinating a response. The transcript of the recording shows that many
different individuals were asking questions and speaking in addition to
Magami and Cook, Sr., and Magami was often in radio communication with
other officers, relaying information as he learned it.
Based on all these circumstances, we conclude Cook, Sr.’s statement
was nontestimonial because it was made during police questioning aimed at
addressing an ongoing emergency.7 Consequently, there was no error in the
7 We recognize that early in the interaction, Magami said to Cook, Sr.,
“So let me ask you something very important. There’s cops out there looking
for him right now.” “When the cops find him what do you want done? You
want obviously—you want him to go to jail, or . . .” (Cook, Sr. responded,
“Uh,” and then said he needed his phone; he never answered Magami’s
question.) But we agree with the Attorney General that this does not affect
our analysis. “[T]he relevant inquiry is not the subjective or actual purpose
of the individuals involved in a particular encounter, but rather the purpose
that reasonable participants would have had . . . .” (Michigan v. Bryant,
supra, 562 U.S. at p. 360.) On this record, the purpose of a reasonable officer
responding to the scene and interacting with the victim would have been
assessing the danger of the situation to Cook, Sr., the officers and the public,
15
trial court admitting evidence of Cook, Sr.’s statement under sections 1240
and 1370.
B. Admission of Text Message
Defendant also contends the trial court erred in admitting evidence of a
text message Cook, Sr. received from “Tenise” on January 30 urging him not
to press charges. Defendant argues the text was not properly authenticated
and was impermissible hearsay. We disagree.
1. The Text Message Was Sufficiently Authenticated
“Authentication of a writing, including a photograph, is required before
it may be admitted in evidence. (§§ 250, 1401.) Authentication is to be
determined by the trial court as a preliminary fact (§ 403, subd. (a)(3)) and is
statutorily defined as ‘the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the evidence claims it is’ or
‘the establishment of such facts by any other means provided by law’
(§ 1400).” (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) The proponent of
a writing meets her burden when there is “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. [Citation.] 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.’ ” (Id. at p. 267.)
We review the trial court’s finding that there is sufficient evidence to
support a finding of authenticity for abuse of discretion. (See People v.
Goldsmith, supra, 59 Cal.4th at p. 266; People v. Landry (2016) 2 Cal.5th 52,
attempting to obtain information relevant to capturing the perpetrator, and
providing Cook, Sr. medical assistance.
16
87–88 [reviewing for abuse of discretion trial court’s ruling that letters
purportedly written by the defendant in prison were sufficiently
authenticated].)
Defendant claims there was no circumstantial evidence that the text
message Cook, Sr. received was sent by Tenise or even sent from her cell
phone. At a pretrial hearing on the admissibility of evidence of the text
message, defense counsel raised a similar issue, arguing lack of foundation.
He asked, “How do we know who this person is? The text message, the phone
numbers, the dates, the times, all of that. Or that all just goes to its weight?”
In response, the trial court explained why there was sufficient
foundation to admit the text: The prosecution would present evidence that
defendant made a phone call “to somebody named Tenise on January 30th,”
in which “defendant gives instructions to Tenise to tell him to go to the DA
and not to press charges, ‘him’ being the complaining witness; that there is
evidence that’s going to come in that an officer will testify that he met with
the complaining witness who showed him the complaining witness’[s] phone.
On the phone was a text message from Tenise. It’s a very unusual name;
that that text message shown to the officer was—it was one day after the
phone call was made,[8] two days after the incident, and that the officer took a
picture of Mr. Cook, Senior’s phone, captured a screenshot with the text
message from Tenise. That is a sufficient foundation.”
8 The text message itself had a time and date stamp indicating it was
sent within about 30 minutes of the jail call between defendant and Tenise.
The trial court, however, was making the point that even without considering
the time and date shown on the text, Magami’s testimony that he was shown
the text on January 31 would establish that the text was sent to Cook, Sr.
close in time (within a day) to the jail call between defendant and Tenise.
17
We see no abuse of discretion in the trial court’s ruling. The
prosecution presented evidence that, while he was in jail, defendant had
“[m]any, many calls” with a woman whose telephone number was registered
under the name “Tenise Cook,” that in a jail call on January 30 around 7:30
p.m., defendant told Tenise (or at least the woman answering to Tenise’s
phone number) to tell him “not to press any charges,” and that, a day after
this jail call, Cook, Sr. showed Officer Magami a text message he received
from a number stored on his cell phone under the name “Tenise” that read in
relevant part, “I just ask that you don’t press charges to make his situation
worse.” (Italics added.)
This was sufficient circumstantial evidence that the text message Cook,
Sr. showed Magami was what the prosecution purported it to be. In other
words, a reasonable trier of fact could have inferred from the evidence that a
woman known to defendant and Cook, Sr. as Tenise sent the text message
Cook, Sr. showed Magami, and that defendant had previously instructed the
same woman to tell Cook, Sr. not to press charges. Accordingly, defendant’s
claim that the text message was not properly authenticated fails.
2. The Text Message Was Not Admitted for a Hearsay Purpose
Finally, defendant argues the text message constituted impermissible
hearsay.
The trial court explained why the text message was not being admitted
for a hearsay purpose: “[T]he hearsay rule would preclude [the message] from
being admitted for the truth of what it asserts. [¶] The truth of what it
asserts is that the defendant could be a handful. . . . The truth of this
message, if you are to believe it, is that the defendant has some demons he is
dealing with. [¶] . . . The truth of this declaration is Tenise declaring that
she will make sure that the defendant doesn’t come back to the complaining
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witness’[s] house, that she will make sure that the complaining witness never
has to deal with or go through an event like this again. The truth of this
declaration is that the defendant loves the complaining witness.” On the
other hand, the court observed, Tenise asking Cook, Sr. “that he not press
charges is not a hearsay statement. That is a question . . . .”
The trial court’s hearsay analysis is correct. The statement, “I just ask
that you don’t press charges . . .” was not offered to prove the truth of any
matter stated. The fact that Tenise texted “I just ask that you don’t press
charges” is established by the evidence of the text message itself, but there is
no past fact that the jury was being asked to find based on those words. The
fact that Tenise sent the text message to Cook, Sr. at the behest of defendant
could be inferred from the jail call in which defendant told her to tell “him”
not to press charges. But, again, the words of the text were not offered for a
hearsay purpose. Defendant’s claim that the text message was improper
hearsay fails.
DISPOSITION
The judgment is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A161600, People v. Cook
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