People v. Sylverain CA4/2

Opinion

Filed 4/13/21 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, ORDER MODIFYING OPINION; AND DENIAL OF PETITION Defendant and Appellant. FOR REHEARING

[NO CHANGE IN JUDGMENT]

The petition for rehearing filed by appellant on March 30, 2021, is denied. The

opinion filed in this matter on Mar, is modified as follows:

I. On page 4, the first sentence in the paragraph just prior to the Discussion

section: September to October 2017 is changed to September through October 2017.

The fourth sentence in the same paragraph is changed from “In Count 22, defendant was

charged with annoying and molesting Victim-2 from January to September 2016 is

changed to “In Count 22, defendant was charged with annoying and molesting Victim-2

from January to September 5, 2016.”

1 II. The content of Discussion subsection “A. SUBSTANTIAL EVIDENCE”

is deleted and replaced with the following:

A. SUBSTANTIAL EVIDENCE

Defendant contends substantial evidence does not support his two convictions for

annoying or molesting a minor. (§ 647.6, subd. (a)(1).)

One element of annoying or molesting a minor is that the “defendant engaged in

conduct directed at a child.” (People v. Valenti (2016) 243 Cal.App.4th 1140, 1161.) In

People v. Phillips (2011) 188 Cal.App.4th 1383 (Phillips), the defendant was

masturbating in his vehicle, 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.”

(Phillips, at p. 1388, fn. omitted.)

In discussing whether section 647.6 requires a specific child to be targeted, the

Phillips court wrote that if a voyeur engages in annoying conduct but does not intend to

be observed by a child, then the voyeur would not be guilty of violating section 647.6.

(Phillips, supra, 188 Cal.App.4th at pp. 1394-1395.) Further, 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.” (Id. at p. 1394.) Relying on the second

sentence just quoted and the voyeur discussion, defendant asserts there is not substantial

2 evidence of him directing his conduct toward a child because he did not intend to be

observed.

Defendant’s reliance on Phillips is misplaced. Contrary to defendant’s assertion,

Phillips did not hold that a defendant must have intended to be observed to be guilty of

annoying or molesting a child. This is demonstrated by the fact that when the Phillips

court summarized the elements necessary for a violation of section 647.6, it did not

include the specific intent to be observed as one of the elements. (Phillips, supra, 188

Cal.App.4th at p. 1396.) Moreover, the Phillips court concluded that the jury

instruction (CALCRIM No. 1122), which does not include an intent to be observed, was

properly given in the case.1 (Id. at pp. 1388, 1393.)

1 In Phillips, the appellate court quoted the relevant portion of the jury instruction as providing, “The defendant is charged [in Count ____] with annoying or molesting a child [in violation of Penal Code section 647.6]. [¶] []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 . . . .’ (CALCRIM No. 1122 . . . .)’ ” (Phillips, supra, 188 Cal.App.4th at p. 1393.) In the instant case, 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.)

3 Nor did Phillips say that proof of an intent to be observed is the only way to

establish that conduct is directed toward a child. Phillips merely concluded that if a

defendant had the intent to be observed by a child, then one can reasonably conclude the

defendant directed his conduct toward a child. (Phillips, supra, 188 Cal.App.4th at p.

1394.)

Further, a voyeur can violate section 647.6, subdivision (a)(1), when the

voyeurism is “combined with affirmative conduct which could ordinarily cause

annoyance or offense.” (People v. Kongs (1994) 30 Cal.App.4th 1741, 1751.) As an

example, in People v. Kongs 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. If any analogy is to be

made here, it would more appropriately be made to a ‘peeping Tom.’ ” (Id. at p. 1752.)

The appellate court concluded the trial court erred by setting aside the information (§

995). (People v. Kongs, supra, 30 Cal.App.4th at p. 1746.)

4 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.)

Here there is evidence of defendant directing his conduct toward 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-1 had her own bedroom; she

did not share it with an adult or sibling. Victim-2 found the spy pen in her bedroom

after she showered. Victim-2 had her own bedroom; she did not share her bedroom

with an adult or sibling. From the recording occurring in the victims’ bedrooms, one

can reasonably find that defendant’s conduct was directed toward the victims, who were

minors.

Moreover, defendant took affirmative steps beyond voyeurism by encouraging

the victims to shower around the times that he placed the cameras in their bedrooms.

When testifying about the video recordings, Victim-1 explained, “[T]hat’s how all these

situations went before. He’d ask me, you need to take a shower, or when are you going

to take a shower.” Victim-2 testified that, after a trip to Disneyland, defendant “was

urging us to take a shower as soon as we got inside,” which was odd because the victims

“already know to take [their] showers.” After taking a shower that evening, Victim-2

found a spy pen in her bedroom.

Defendant’s acts of encouraging the victims to shower, which necessarily

involves undressing, is analogous to the defendant in Kongs who encouraged children to

“lift their legs and knees up in the air so as to expose their underwear.” (People v.

5 Kongs, supra, 30 Cal.App.4th at p. 1747.) Accordingly, substantial evidence supports

the element of defendant’s affirmative conduct being directed toward children.

Next, 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.

III. Because footnote No. 2 was removed, footnote No. 4 is renumbered

footnote No. 3.

6 Except for these modifications, the opinion remains unchanged. The

modifications do not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur:

SLOUGH J.

FIELDS J.

7 Filed 3/16/21 P. v. Sylverain CA4/2 (unmodified opinion)

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.

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))2; 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

2 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

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.3

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,

3 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.4 (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

4 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.5 That argument fails because the prosecutor moved to introduce the content

5 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.