Filed 3/16/21 P. v. Sylverain CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073082
v. (Super.Ct.No. SWF1700575)
ANDY SYLVERAIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Affirmed.
Innocence Legal Team and William P. Daley for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Quisteen S.
Shum and Ksenia D. Gracheva, Deputy Attorneys General, for Plaintiff and
Respondent.
1 A jury found defendant guilty of 10 counts of committing a lewd or lascivious
act upon a child who is 14 or 15 years old (Pen. Code, § 288, subd. (c)(1))1; one count
of attempting to commit a lewd or lascivious act upon a child who is 14 or 15 years old
(§§ 664, 288, subd. (c)(1)); and two counts of annoying or molesting a minor (§ 647.6,
subd. (a)(1)). The trial court sentenced defendant to prison for a term of three years four
months.
Defendant raises three issues on appeal. First, defendant contends substantial
evidence does not support his two convictions for annoying or molesting a minor
(§ 647.6, subd. (a)(1)). Second, defendant asserts text messages were received into
evidence without proper authentication. Third, defendant contends it was improper to
let one of the victims testify about a conversation that had been secretly recorded. We
affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Victim-1 was born in September 2001. Victim-2 was born in October 2000.
Defendant was born in July 1982. Victim-1 and Victim-2 (collectively, the victims) are
sisters. Defendant is the victims’ stepfather.
In Spring 2016, defendant entered Victim-1’s bedroom during the night while
Victim-1 was in bed. Defendant moved the sheets away from Victim-1 and then tried to
remove her clothes. Defendant touched Victim-1’s vagina underneath her clothes.
Victim-1 pretended to sleep. Similar touching incidents occurred over a month-long
1 All subsequent statutory references will be to the Penal Code unless otherwise indicated.
2 period, and defendant entered Victim-1’s bedroom approximately 20 times during that
month.
In May or June 2016, defendant entered Victim-2’s bedroom during the night.
Victim-2 slept in a nightshirt that went to her mid-thigh. Defendant moved the covers
away from Victim-2 and pushed her nightshirt up to her waist. Victim-2 was awake but
kept her eyes closed. Victim-2 “toss[ed] and turn[ed]” to prevent defendant from
touching her body. Defendant came into Victim-2’s bedroom more than 10 times. Each
incident was similar, with defendant pushing up her nightshirt, and Victim-2 moving to
avoid being touched. In May 2016, defendant placed a spy pen in Victim-2’s bedroom.
The spy pen recorded Victim-2 dressing after taking a shower.
In June or July 2016, the victims told their mother (Mother) about the touching.
Defendant moved out of the home for one or two months, but then returned. Defendant
was deployed to the Middle East from October 2016 to May 2017.
In May 2017, defendant placed a spy pen in Victim-1’s bedroom. The spy pen
recorded Victim-1 undressing. In October 2017, defendant placed a phone in Victim-
1’s room to record her. Victim-1 was undressing in her bedroom when she noticed the
phone recording her. Victim-1 found recording devices in her room five or six times.
In September 2017, the touching incidents resumed. Defendant entered Victim-
1’s bedroom, moved her sheets, pulled Victim-1’s clothes to the side, and touched
Victim-1’s breasts and vagina. One night, defendant said “ ‘Kiss me, [Victim-1].’ ”
Victim-1 turned over, and defendant moved her back and kissed her.
3 In October 2017, the victims told Mother that the molestation incidents had
resumed. Mother confronted defendant and told him to leave the house, and defendant
left. Around October 28, 2017, the victims spoke to the police about the molestations.
Defendant testified at trial. During his testimony, defendant described his conduct as an
“invasion of privacy.” At the time of defendant’s trial, in March 2019, Mother and
defendant were in the process of divorcing.
In Count 21, defendant was charged with annoying and molesting Victim-1 from
September to October 2017. (§ 647.6, subd. (a).) During closing argument, the
prosecutor asserted Count 21 consisted of “the recording and the touching” of Victim-1.
In Count 22, defendant was charged with annoying and molesting Victim-2 from
January to September 2016. (§ 647.6, subd. (a).) During closing argument, the
prosecutor asserted Count 22 consisted of “the secret recordings of [Victim-2].”
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support his two convictions for
annoying or molesting a minor (§ 647.6) because the victims were unaware that they
were being recorded; and because they were not aware of the recording, the recording
was not annoying.
Under the substantial evidence standard, we look at the evidence in the light most
favorable to the prosecution to determine whether any rational trier of fact could have
found defendant guilty. (People v. Hatch (2000) 22 Cal.4th 260, 272.)
4 Section 647.6, subdivision (a)(1), prohibits annoying or molesting a minor.
“[T]he words ‘annoy’ and ‘molest’ . . . are synonymous and generally . . . [¶] relate to
offenses against children, with a connotation of abnormal sexual motivation. The
forbidden annoyance or molestation is not concerned with the child’s state of mind, but
rather refers to the defendant’s objectionable acts that constitute the offense. [Citation.]
[¶] Accordingly, to determine whether the defendant’s conduct would unhesitatingly
irritate or disturb a normal person, we employ an objective test not dependent on
whether the child was in fact irritated or disturbed.” (People v. Lopez (1998) 19 Cal.4th
282, 289-290.)
As an example, in People v. Kongs (1994) 30 Cal.App.4th 1741 the defendant
attended “events at which numerous photographers take pictures of models of varying
ages so that both the photographers and the models can develop portfolios.” (Id. at p.
1746.) The defendant was a photographer at the events. The defendant photographed
girls wearing skirts and directed them to “lift their legs and knees up in the air so as to
expose their underwear, then [the defendant] focus[ed] his camera on the area between
their legs.” (Id. at p. 1747.) The appellate court explained that the defendant’s
“subterfuge of pretending to be a legitimate photographer while clandestinely trying to
peek at the models’ genital areas . . . is the factor that makes [the defendant’s]
voyeuristic conduct annoying or offensive to the average person under Penal Code
section 647.6.” (Id. at p. 1752.) The appellate court held that “[a] fact finder could . . .
objectively conclude that the average person would be unhesitatingly irritated or
5 offended by a photographer surreptitiously aiming his camera up a child’s dress rather
than photographing her face or entire clothed body.” (Id. at p. 1751.)
Defendant asserts that a person would not be annoyed by a secret recording
because the person would have no knowledge of the recording. Victim-2 discovered the
spy pen in her room, while wearing a towel, after taking a shower. Victim-2 noticed the
pen had an orange light and saw it had a camera. During October 2017, Victim-1 found
recording devices in her bedroom five or six times, typically the recording devices were
placed there before she showered. Victim-1 testified, “And [defendant] would say,
‘make sure you take a shower when you’re done.’ And when I go in my room there
would always be a camera up on my shelf but not like a camera, a phone, his phone in
my room, and it would be on the top shelf behind a red box.” Victim-1 did not notice
the phone/camera immediately upon entering her room but saw it when “grab[bing]
something off that shelf.” The victims learned they were being recorded while the
recording was happening. Because the victims were aware of defendant recording
them, we find defendant’s “lack of knowledge” argument is contrary to the evidence.2
Defendant also contends that the evidence failed to establish the requisite intent.
Defendant cites to the case of People v. Phillips (2011) 188 Cal.App.4th 1383, to
support his contention. In Phillips, the defendant was masturbating in his vehicle,
2 Because the victims in this case had knowledge of defendant’s conduct, we need not decide in this case whether a conviction under section 647.6, subdivision (a)(1), is permissible when victims lack knowledge of a defendant’s conduct. In other words, we leave for another day the issue of whether a victim’s knowledge of a defendant’s annoying conduct is an element of section 647.6, subdivision (a)(1).
6 which was parked in front of a high school. Fifteen-year-old S.L. walked by the
defendant’s vehicle and saw him masturbating. (Id. at pp. 1386-1387.) The defendant
argued that his section 647.6 conviction was improper because “there was no evidence
that his actions were directed at the particular victim, S.L.” (Id. at p. 1388, fn. omitted.)
In discussing the issue, the appellate court wrote, “In addition, under Penal Code
section 647.6, subdivision (a)(1) there must be evidence that the perpetrator ‘directed’
the conduct toward a child. [Citation.] The intent to be observed while engaging in the
offensive conduct is subsumed in the element that the offender ‘directs’ his conduct
toward a child.” (People v. Phillips, supra, 188 Cal.App.4th at p. 1394.) The appellate
court concluded the defendant’s intent to be observed could be found from
circumstantial evidence, such as the type of vehicle he was in, where the vehicle was
parked in relation to the children, and the time of day. The court also explained that
intent “may be easily proved if the child victim is a specific child, known in advance to
the offender.” (Id. at p. 1395.)
In the instant case, defendant asserts he lacked the intent to be observed. Section
647.6, subdivision (a)(1) does not require an intent to be observed. Rather, section
647.6 is a general intent crime but requires a “ ‘mental state element’ of motivation by
an unnatural or abnormal sexual interest” in children. (Ruelas v. Superior Court (2015)
7 235 Cal.App.4th 374, 379.) In other words, section 647.6, subdivision (a)(1) is not a
specific intent crime—it is a general intent crime with a motive requirement.3 (Ibid.)
Here there is evidence of defendant being motivated by a sexual interest in
children. Victim-1 said defendant’s phone appeared in her room five or six times
during October 2017, and it always appeared before she showered. Victim-2 found the
spy pen in her bedroom after she showered. One can reasonably infer from the
recording occurring around the time of the victims’ showers that defendant was
interested in seeing the victims when they were nude. One can reasonably infer that
defendant wanted to see the victims nude because he was motivated by a sexual interest
in children. Accordingly, substantial evidence supports the motive element of the two
section 647.6 convictions.
B. PRIOR CONSISTENT STATEMENT
1. PROCEDURAL HISTORY
The People moved in limine to introduce a text conversation that occurred
between Victim-2 and her friend (Friend) on Snapchat. The People asserted the text
3 For the section 647.6, subdivision (a)(1), charges, the jury was instructed as follows: “The defendant is charged in Counts 21 and 22 with annoying or molesting a child. [¶] To prove that the defendant is guilty of this crime, the People must prove that: “1. The defendant engaged in conduct directed at a child; “2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct. “3. The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child; “AND “4. The child was under the age of 18 years at the time of the conduct. “It is not necessary that the child actually be touched.” (CALCRIM No. 1122.)
8 messages were admissible pursuant to the fresh complaint doctrine and that, in the text
conversation, Victim-2 wrote about defendant’s lewd and lascivious conduct. The
People asserted the text conversation occurred on July 15, 2016, while the police report
occurred approximately one year later. The People sought to question Victim-2 about
her disclosure to Friend, but, at that time, the People did not seek to introduce a copy of
the text conversation.
Defense counsel responded, “I think it is appropriate to come in as a prior
consistent statement if that arises. But as far as a fresh complaint, I don’t believe there
has been a foundation established that this was close in time to the alleged incident.”
The trial court concluded the evidence would be admissible under the fresh complaint
doctrine. The court ruled that Victim-2 could be questioned about “if she ever told
anyone about this type of touching, when that occurred, and the method in which that
communication occurred. And that will be it.” The court said a copy of the text
conversation would not be admitted. On direct, cross, and redirect examination, Victim-
2 testified that, on July 5, 2016, she texted Friend about “what the defendant had been
doing.”
During the direct examination of defendant, he testified that the allegations in the
instant case had caused difficulties in his divorce case. Defendant said the victims lied
about him touching them. Defendant believed the victims were lying to support Mother
in the divorce case. On cross-examination, defendant again said the victims were lying
and that he believed Victim-2 was trying to assist Mother in the divorce.
9 A lunch recess took place in the midst of defendant’s testimony. During the
recess, the prosecutor said that he had previously questioned Victim-2 about the text
messages under the fresh complaint doctrine, but he wanted to recall her and question
her about the text messages pursuant to the prior consistent statement exception to the
hearsay rule.
Defense counsel objected. Defense counsel asserted Victim-2 was the source of
the text messages and therefore could not authenticate them because she would
essentially be vouching for her own credibility. Defense counsel expressed concern that
Victim-2 could have manipulated the date of the text conversation. Defense counsel
contended the prosecutor should have used a subpoena to obtain the text messages or
called Friend to testify about the messages. Further, defense counsel asserted the text
messages were more prejudicial than probative due to the lack of foundation. The
prosecutor asserted defense counsel’s authentication concerns went beyond the
requirements of the law and that Victim-2 could provide the necessary foundation to
authenticate the text messages.
The trial court ruled the text messages sent by Victim-2 were admissible as prior
consistent statements and were more probative than prejudicial. As to defense counsel’s
concerns, the court said, “And the defense is welcome to cross-examine the witness as
to their origin and also to point out in argument that it was a little self-serving that she
presented the statements and there might have been other options to bring them in
through neutral sources, and the weight will be for the jury to decide, but they will be
admitted.”
10 The prosecutor recalled Victim-2. The prosecutor showed the text messages to
Victim-2. Victim-2 said the messages were the ones she sent to Friend on July 5, 2016,
via Snapchat. Victim-2 explained that the text conversation was stored in her Snapchat
account. Victim-2 said she had not edited the conversation, altered the date of the
conversation, or changed the date on her phone to make the conversation appear to have
a different date.
After Victim-2’s testimony ended, the parties and the court discussed the
exhibits. Defense counsel objected to the text messages on the bases that they involved
compound hearsay and lacked foundation. The trial court overruled the objections and
received the text messages into evidence.
2. ANALYSIS
Defendant contends the trial court erred by admitting “the full text of the
conversation” between Victim-2 and Friend because there was insufficient foundation
concerning the date of the conversation.
A text message is a writing. (Evid. Code, § 250.) The authenticity of a writing is
a foundational issue that the proponent of the evidence must establish before the
evidence may be admitted. (Evid. Code, § 403, subd. (a)(3).) “Authentication of a
writing means (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.) “A writing may be
authenticated by anyone who saw the writing made or executed, including a subscribing
11 witness.” (Evid. Code, § 1413; see also People v. Williams (1997) 16 Cal.4th 635, 662
[a detective authenticated a recording of his conversation with the defendant].)
“The trial court has the preliminary, but not the final, authority to determine the
question of the existence of the preliminary fact. Unlike in other situations [citation],
under Evidence Code section 403, ‘[t]he preliminary fact questions listed in subdivision
(a) [of Evidence Code section 403] . . . are not finally decided by the judge because they
have been traditionally regarded as jury questions. The questions involve the credibility
of testimony or the probative value of evidence that is admitted on the ultimate issues.
It is the jury’s function to determine the effect and value of the evidence addressed to
it. . . . [T]he judge’s function on questions of this sort is merely to determine whether
there is evidence sufficient to permit a jury to decide the question. The “question of
admissibility . . . merges imperceptibly into the weight of the evidence, if admitted.” ’ ”
(People v. Lucas (1995) 12 Cal.4th 415, 466-467.)
“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 [that]
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 (Goldsmith).) “The decision whether the foundational evidence is sufficiently
substantial is a matter within the [trial] court’s discretion.” (People v. Lucas, supra, 12
Cal.4th at p. 466.) Therefore, we apply the abuse of discretion standard of review.
Victim-2 said she wrote the text messages on July 5, 2016. Because Victim-2
executed the text messages, she could properly authenticate the messages. (Evid. Code,
12 § 1413; Goldsmith, supra, 59 Cal.4th at p. 267-268 [photographs can be authenticated
by the person who took the photograph]; People v. Smith (2009) 179 Cal.App.4th 986,
990, fn. 3 [“Approximately 40 pages of Exhibit 1 were authenticated by the eight
victims who testified that they executed a new agreement every time they invested”].)
Because Victim-2 was a proper person to authenticate the text messages, the trial court
could reasonably conclude that Victim-2’s testimony provided sufficient foundational
evidence indicating the text messages were written on July 5, 2016. In sum, the trial
court did not err.
Defendant requests this court take judicial notice of his Google search results for
the search “can you change date on snapchat.” Defendant asserts, “Judicial Notice of
such material, commonly available, is proper. (Evidence Code section[s] 459, 452.)”
Defendant does not explain under what subdivision of Evidence Code section 452 this
court could take judicial notice of Google search results. However, we infer from his
assertion that the search results are “commonly available” that he is referring to
Evidence Code section 452, subdivision (h), which permits judicial notice of “[f]acts
and propositions that are not reasonably subject to dispute and are capable of immediate
and accurate determination by resort to sources of reasonably indisputable accuracy.”
With the information defendant has provided, if we were to grant his request for judicial
notice, we would be taking notice of the fact that when one searches “can you change
date on snapchat,” there are results for such a search. In other words, defendant has not
provided us with information about the basic fact of changing dates on Snapchat; he has
provided information about searching for such information. It is unclear how the search
13 result information is relevant. Therefore, we deny defendant’s request for judicial
notice. (People v. Payton (1992) 3 Cal.4th 1050, 1073 [items must be relevant to be
judicially noticed].) Besides, it does not appear such a request was made during the
trial, at which the jury was deciding the credibility of Victim-2’s testimony regarding
the text messages.
Defendant contends, “If the date of the conversion [sic] was to be litigated in
absence [sic] of business records from the internet service provider, or from Snap Chat
[sic], additional testimony from an expert on the ability to change the date, was
needed.” Defendant does not cite any legal authority explaining why business records
or expert testimony is necessary to authenticate a writing. Given the law that reflects a
writing may be authenticated by one who executed the writing (Goldsmith, supra, 59
Cal.4th at p. 267-268 [photographs can be authenticated by the person who took the
photograph]; People v. Smith, supra, 179 Cal.App.4th at p. 990, fn. 3 [exhibit
authenticated by victims]), defendant would need to provide legal authority to explain
why Victim-2’s testimony is legally inadequate to authenticate the text messages.
Defendant asserts that, without authentication of the date of the text messages,
the trial court erred by finding the text messages were more probative than prejudicial.
(Evid. Code, § 352.) We have concluded ante that the trial court did not err by
concluding Victim-2’s testimony provided sufficient foundational evidence for the date
of the text messages. Accordingly, because we have rejected the premise of the
defendant’s assertion, i.e., that the text messages were not properly authenticated, we do
14 not address the probative value versus prejudice contention that is based on that
premise.
Defendant asserts the trial court erred by admitting the text messages into
evidence because defendant did not have time to obtain evidence from Snapchat to
establish that Victim-2 may have altered the date of the text conversation. Defendant
asserts it would have taken “at least months, if not years” to obtain the evidence from
Snapchat. In the trial court, defendant did not request a continuance to obtain evidence
regarding altering dates within Snapchat. Rather, defendant argued, “[T]he People have
the burden to bring in somebody to say, ‘This is a legitimate e-mail.’ ” Because
defendant did not request a continuance in the trial court, defendant has forfeited the
argument that the trial court erred by admitting the text messages when defendant
lacked time to gather evidence in response. (People v. Fuiava (2012) 53 Cal.4th 622,
653 [“Defendant forfeited this claim by failing to raise this issue below, when the trial
court could have remedied the alleged shortcoming”].)
Defendant asserts the trial court erred by relying only on defense counsel’s
opening statement for the proposition that the defense alleged Victim-2 fabricated her
testimony.4 That argument fails because the prosecutor moved to introduce the content
4 Evidence Code section 791, which concerns prior consistent statements provides, “Evidence of a statement previously made by a witness that is consistent with [her] testimony at the hearing is inadmissible to support [her] credibility unless it is offered after: [¶] . . . [¶] An express or implied charge has been made that [her] testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” (See also Evid. Code, § 1236.)
15 of the text messages only after defendant testified about the victims allegedly
fabricating their accusations against defendant. Accordingly, we are not persuaded that
the trial court relied solely on defense counsel’s opening statement for the proposition
that the defense accused the victims of fabricating their accusations against defendant.
C. RECORDED CONVERSATION
In October 2017, Victim-1 told defendant she found the phone/camera in her
bedroom that was recording her. Defendant told Victim-1 they would have a
conversation about it when she finished showering. After Victim-1 finished her shower,
she set her phone to record and put it in her pocket for the purpose of recording her
conversation with defendant. The prosecutor asked Victim-1 what was said during the
conversation. Victim-1 testified about the conversation. The recording of the
conversation was not presented to the jury. Defendant also testified about the
conversation.
Defendant contends that, while Victim-1 could properly testify about the
conversation, it was erroneous to tell the jury that the conversation had been recorded
because that made it “as if [the recording] had been played for the jury,” and it is illegal
to secretly record a conversation. The People assert defendant forfeited this issue by
failing to raise it in the trial court. We agree that the issue has been forfeited, but for the
sake of thoroughness will address defendant’s contention.
16 “A person who, intentionally and without the consent of all parties to a
confidential communication, uses a[] . . . recording device to . . . record the confidential
communication, [where] the communication is carried on among the parties in the
presence of one another . . . shall be punished . . . .” (§ 632, subd. (a).) “Except as
proof in an action or prosecution for violation of this section, evidence obtained as a
result of . . . recording a confidential communication in violation of this section is not
admissible in any judicial, administrative, legislative, or other proceeding.” (§ 632,
subd. (d).)
Our Supreme Court has held that “to the extent section 632(d) demanded the
suppression of relevant evidence in a criminal proceeding, it was abrogated” by the
“Right to Truth-in-Evidence” provision of the Constitution, which provides “ ‘relevant
evidence shall not be excluded in any criminal proceeding.’ ” (People v. Guzman
(2019) 8 Cal.5th 673, 677, fn. omitted.) Thus, if a recording is relevant evidence, it
“ ‘shall not be excluded’ ” in a criminal trial. (Id. at p. 683.) Accordingly, defendant’s
premise that it would have been improper to present the recording to the jury is
questionable, given our Supreme Court’s holding in People v. Guzman.
Even if defendant’s premise were not questionable, his contention would
nevertheless fail because the recording was not presented to the jury. A witness who
recalls from memory a conversation that happened to be recorded can testify about the
conversation. (Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1493.) Section 632
does not “remove the risk inherent in speaking, namely, the risk the party to whom the
remarks are addressed might later repeat the conversation.” (Frio, at p. 1493, fn.
17 omitted.) Thus, Victim-1 could properly testify about her recollection of the
conversation with defendant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
SLOUGH J.
FIELDS J.