Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F2061
HULL, J.A jury convicted defendant Jacquelynn Faye Fielding of unlawful sexual intercourse, a felony, and two misdemeanors, child molestation and furnishing alcohol to a minor. (Pen. Code, §§ 261.5, subd. (d), 647.6, subd. (a); Bus. & Prof. Code, § 25658, subd. (a).) The trial court suspended imposition of sentence and granted defendant probation. Defendant timely filed this appeal.
On appeal, defendant contends certain MySpace documents were not adequately authenticated and should not have been admitted into evidence, and contests the propriety of a pattern instruction on uncharged act evidence, CALCRIM No. 1191. We find no error and affirm the judgment.
Facts and Proceedings
The victim testified he was at the time of trial a 15-year-old high school freshman. He participates in competitive go-kart racing and he met the defendant’s little brother a few years ago at a race. The victim met defendant shortly after that. He would see her every Saturday at the racetrack, and they would flirt and tease, and a couple of years ago, they kissed. They began kissing about six months before December 23, 2007, and kissed 10-15 times.
Both defendant and the victim had MySpace accounts, and they were MySpace “friends.” MySpace comments posted to an account can be read by anybody viewing that page, but MySpace messages are similar to e-mails, and are exchanged privately between “friends” through MySpace.
Defendant and the victim would exchange messages, sometimes about racing and sometimes about sexual matters. The victim identified a packet of copies of MySpace messages, and testified he had written the portions from his account, and he believed the messages from defendant’s account were written by her, based on their content. Some are fairly explicit, such as an exchange on November 18, 2007, where defendant said, “ok so you only say [you] love me cuz you wanna fuck me?” In an exchange on November 26, 2007, defendant wrote “I want to have sex.”
The victim testified he had sexual intercourse with the defendant at the racetrack on a table in a concession stand at the Red Bluff Fairgrounds, sometime between November 23, 2007 and December 18, 2007.
Defendant arranged to come to Redding on December 23, 2007, and see the victim at his friend B.’s house, so defendant and the victim could have sex again. After defendant got the key to the house from B., she picked the victim up at his house and took him to B.’s house, then picked up some beer and returned to the house. A man named Cody was with defendant. The victim had sex with defendant twice that night, in B.’s room, then the victim went to a friend’s house to spend the night. While at B.’s house the victim drank a small amount of beer, but poured it out because he did not like it.
B. testified he exchanged texts with defendant to give her a house key so that she could have sex with the victim, and she later showed up with Cody to pick up the key. During other text exchanges, defendant admitted having sex with the victim more than one time, and admitted having sex with the victim at the racetrack. B. asked her about the fact that the victim was 14 and she was 21, and defendant replied that “Age was just a number and it didn’t really matter.” After B.’s parents learned what happened, B. texted defendant to tell her the police had been called. Defendant said she was “freaking out” because the police had been called, and after defendant said “she’d kill herself if she had to go to jail, ” B. called the victim’s parents to tell them what defendant said.
B.’s mother testified that after she returned home on the day in question she saw beer cans on the kitchen counter, found the victim’s hat in her bedroom and saw B. changing his sheets; after speaking with B., she called the victim’s mother.
The victim’s mother testified that after she received a call from B.’s mother, she spoke to the victim and he said he went to B.’s house to have sex with defendant and admitted what had happened. Later that afternoon, after B. spoke with her, the victim’s mother became concerned that defendant might hurt herself, and called the defendant’s mother; however, defendant answered the telephone. Defendant asked her not to tell the police because her mother might lose her day care business, said that she was very sorry and said that she would never talk to the victim again. Although defendant never denied having sex with the victim, the victim’s mother never explicitly accused her of having sex with him.
The victim’s father testified that he printed all the communications between his son and defendant from his son’s MySpace account, and did not alter them. The victim’s father acted as the victim’s pit crew at the races, and also worked as a race official. At a race in Chico around June or July 2007, he saw defendant “making out” with K., one of the victim’s 14-year-old friends. They were on the hood and fender of a car, “groping, grabbing each other” and kissing. When he confronted defendant and asked her how old she was, she “took off.” When he called the defendant and asked if she had sex with the victim, she denied it and said she would run off or kill herself if the police were told. At other races, after the December 2007 allegations about sex between defendant and the victim, he heard defendant call out that she loved the victim, but the victim could not hear this, and his father thought she was doing this to taunt him for calling the police.
D.C., a 15-year-old girl, testified she knew the victim from the races and had kissed or made out with him, and he did not have a reputation for honesty. On cross-examination, she conceded she had been “in a kind of dating relationship” with the victim, but denied being jealous of his relationship with defendant.
Officer Robert Garnero testified that on December 26, 2007, the victim told him he had had sex with the defendant. The victim’s report to Officer Garnero differed in three minor respects from his trial testimony. The victim told the officer that he was at B.’s residence when Cody and defendant got beer, but he had testified he was in the car when that happened. He told the officer that one of the two incidents of sex in B.’s house occurred in B.’s mother’s room, but testified both incidents occurred in B.’s room. Finally, he told the officer that Cody remained in B.’s bedroom while the victim and defendant had sex, but he testified that Cody left the room during each incident of sex.
On cross-examination, the victim conceded he was “still really close” to defendant on December 26, 2007, when a peace officer first questioned him about what had happened, and that he did not answer the officer truthfully. In a November 3, 2008 interview he had been confused about a document, but did not mean to lie, and when he spoke with Kristen Fredrick on January 8, 2006, and with the prosecutor on February 2, 2009, he told the truth. He testified he had commonly lied to his parents when he was younger, “to get out of trouble.”
Cody S. testified he picked up a key from B., picked up the victim, then bought beer with the victim and defendant. He stayed in B.’s room, except for leaving to smoke a cigarette, he never left the room. He did not see defendant and the victim kiss or make out.
Kristen Fredrick, a police investigator, testified she interviewed the victim on January 8, 2008. Some of the statements he made were inconsistent with his trial testimony in small ways. For example, he told Investigator Fredrick that he did not think he had touched defendant’s breast, but at trial he testified he touched her breast. He told her he had been in B.’s mother’s bedroom, but did not have sex in that room. He also claimed defendant was the first person he had had sex with, but after Investigator Fredrick said she did not believe him, he admitted he had had sex before.
Jeremy Duval, an investigator with the prosecutor’s office, testified he interviewed the victim on November 3, 2008, along with a deputy district attorney, and that the victim’s father was present. The victim said that when he and defendant undressed at B.’s house, this was his “first time in front of a lady.” He also said he had sex with the defendant in B.’s parents’ room. In an interview that Investigator Duval conducted with the victim on February 2, 2009, the victim said that he had had sex with the defendant on an earlier occasion, at the racetrack.
Defendant testified that she began exchanging MySpace communications with the victim in the summer of 2007, and that the packet of exchanges prepared by the victim’s father was incomplete and inaccurate. For example, in the exchange which shows that she said she wanted to have sex, the victim erased her message, wrote a new message, then replied to it. Other exchanges were not reproduced fully. She admitted that her message in another exchange suggested she might have sex with him, but explained she was being sarcastic. At a race on September 7, 2007, K. tried to kiss her, but it only lasted a second. The victim tried kissing defendant during that same race. She denied having sex with the victim at the racetrack or at B.’s house.
In rebuttal, K. testified that at a race in September 2007, when he was 14 or 15, he kissed defendant, but he denied “French” kissing her or leaning over a car. However, Investigator Frederick testified that K. told her he had “French” kissed defendant.
Discussion
I
The MySpace Pages
Before trial, defendant moved to exclude MySpace documents purportedly evidencing exchanges between defendant and the victim. The trial court tentatively ruled the People could authenticate them based on their content and the victim’s testimony, and that any “alleged deficiencies” would go to the weight of the evidence. In answer to a concern about the accuracy of the documents, which the victim’s father had printed from the victim’s computer, the trial court noted the defense could subpoena records from MySpace.
At a pretrial hearing (see Evid. Code, § 402, subd. (b)), the victim testified he had had a MySpace account since he was 12 years old, and defendant was a “friend” on his page between September and December 2007. MySpace messages can be sent between friends, similar to e-mail, and cannot be viewed by others. Comments can be posted so that anybody can see them. The victim identified pages of copied messages dated between September and December 2007, exchanged between himself and defendant, via their MySpace accounts. Based on the messages from defendant’s account, the victim believed they were written by defendant, because they addressed matters he had discussed with her, including sexual conversations. Further, he testified “A lot of the times I was talking to [defendant] on MySpace, I would also be texting her or talking on the phone to her at the same time[.]” On cross-examination, the victim testified that somebody once “hacked” into his MySpace account and changed the “mood status” he had posted from “I’m ready to win” to “I’m ready to be gay.”
The trial court excluded evidence of messages the victim’s father purportedly exchanged with defendant, via defendant’s sister’s MySpace account. However, the trial court admitted the messages purportedly exchanged between the victim and defendant.
On appeal, defendant contends the trial court erred because the “documents” were not adequately authenticated.
A writing must be authenticated before it may to be admitted into evidence. (Evid. Code, § 1401, subd. (a).) Authentication is “(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.” (Id., § 1400.)
After the trial court makes a preliminary finding that sufficient facts exist to authenticate a document, “the authenticity of the document becomes a question of fact for the trier of fact.” (McAllister v. George (1977) 73 Cal.App.3d 258, 262; see People v. Garcia (1988) 201 Cal.App.3d 324, 328-329.)
The trial court’s ruling is reviewed for abuse of discretion. (People v. Tafoya (2007) 42 Cal.4th 147, 165; People v. Williams (1997) 16 Cal.4th 153, 196-197.)
Documents may be authenticated in various ways. “Circumstantial evidence, content and location are all valid means of authentication.” (People v. Gibson (2001) 90 Cal.App.4th 371, 383; see People v. Smith (2009) 179 Cal.App.4th 986, 1001-1002; People v. Olquin (1994) 31 Cal.App.4th 1355, 1372-1373.)
“‘If a letter or telegram is sent to a person and a reply is received in due course purporting to come from that person, this is sufficient evidence of genuineness.’” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 320 (Jazayeri).) “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. 321.)
Here, the victim testified he sent the messages and received the replies reflected by the copies, and based on their content, he believed he was communicating with defendant. That testimony was adequate to support their admission into evidence.
Defendant points to evidence showing that some of the messages may have been altered. However, the fact that a document was or may have been altered does not preclude a preliminary finding of authenticity, where the claimed alterations are immaterial. (See People v. Hovarter (2008) 44 Cal.4th 983, 1014.) Further, the defendant emphasizes that it cannot be known who is sending a message or posting a comment on MySpace, and points out that even the victim admitted his account had been “hacked” and used by someone else. However, the possibility that the incriminating messages purportedly coming from defendant were in fact sent or posted by someone else went to the weight of the evidence, not its admissibility. (Jazayeri, supra, 174 Cal.App.4th at p. 320.)
Defendant separately complains about a “survey” posted on her MySpace page that both she and the victim purportedly filled out. The victim’s testimony was that defendant posted the survey on her MySpace page, he answered the questions and sent it back to her, and he received her reply answers a couple of hours later. Given this testimony, we cannot say the trial court abused its discretion in making a preliminary finding of authenticity of the survey responses.
Moreover, contrary to defendant’s view, this was not a “he said, she said” case, in which the MySpace documents tipped the scales. Defendant admitted in text messages to B. that she had had sex with the victim, knowing he was only 14, stating that age “didn’t really matter.” Further, she made incriminating statements to the victim’s mother, and told the victim’s father that she would kill herself if the police were told. Further, there was evidence she passionately kissed another 14-year-old boy at the racetrack. And contrary to defendant’s view, the victim was not significantly impeached with the discrepancies in his statements and admission to have lied often when he was younger. There was no rational motive for him to make up his story, and it was largely consistent over time, given the victim’s age and the evident embarrassment he felt. Thus, although the MySpace evidence was probative, it is not reasonably probable that the result would have been different had it been excluded; any error was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
II
Uncharged Sexual Conduct
Generally speaking, Evidence Code section 1108 allows the introduction of uncharged sexual acts to be used to show a defendant’s propensity to commit sexual offenses. (See People v. Falsetta (1999) 21 Cal.4th 903, 911-922.)
On appeal, defendant contends the trial court erred by instructing the jury with CALCRIM No. 1191, pertaining to uncharged act evidence, and that trial counsel was incompetent because he did not object to the instruction. We need not address the claim of incompetent counsel, because we reject defendant’s claim on the merits.
Before trial, defendant moved to exclude evidence that defendant kissed another boy at the racetrack, in part alleging a lack of discovery. After K.’s identity was learned during trial, K. was allowed to testify in the People’s rebuttal case. Defendant asked for an instruction regarding the late discovery of this information, and, over the prosecutor’s objection, the trial court so instructed.
The parties also discussed how to modify the pattern instruction on uncharged act evidence, CALCRIM No. 1191, to describe the alleged act of intercourse between defendant and the victim at the racetrack, and the alleged incident with K., but defendant did not object to CALCRIM No. 1191 as such. Accordingly, the trial court instructed the jury with CACLRIM No. 1191 as follows:
“The People have presented evidence that the defendant allegedly committed the crimes of unlawful sexual intercourse with [the victim] on a date prior to December 23, 2007, and evidence that the defendant committed the crime of annoying or molesting a child with [K.], that were not charged in this case. These crimes are defined for you in these instructions.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed these uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged offense or offenses, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit unlawful sexual intercourse as charged in Count 1 and molesting... or annoying a child as charged in Count 2.
“If you conclude that the defendant committed the uncharged offense or offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of unlawful sexual intercourse as charged in Count 1 or annoying or molesting a child as charged in Count 2. The People must still prove each charge beyond a reasonable doubt.”
Defendant contends this instruction was unduly confusing, because the uncharged evidence “was alleged to have occurred within weeks of the charged criminal activity and involved the exact same victim and the exact same charges.” Defendant complains that the jury could find the racetrack intercourse occurred by a preponderance of the evidence, and then use that incident to find beyond a reasonable doubt that intercourse also occurred at B.’s house.
This court has repeatedly upheld the instruction at issue. (People v. Johnson (2008) 164 Cal.App.4th 731; People v. Cromp (2007) 153 Cal.App.4th 476; People v. Schnabel (2007) 150 Cal.App.4th 83.) We see nothing remarkable about the fact that one of the two uncharged acts referred to in the instruction involved the victim.
Defendant relies largely on People v. Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), a case that is of dubious authority. The United States Supreme Court granted certiorari, and vacated the judgment, albeit on grounds unrelated to the issue in this case. (Quintanilla v. California (2007) 549 U.S. 1191 [167 L.Ed.2d 40].) Normally, an unqualified reversal leaves a case “as if no judgment had ever been rendered.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 869, p. 928.) The subsequent decision by the Quintanilla court, in conformity with the directives of the United States Supreme Court, was not published. (See People v. Wilson (2008) 166 Cal.App.4th 1034, 1046, fn. * (Wilson).) Thus, although the Quintanilla court had certified its original opinion for publication, in light of the United States Supreme Court order vacating that decision, it appears doubtful whether Quintanilla remains citable authority. (Cal. Rules of Court, rule 8.1115; see People v. Cameron (1994) 30 Cal.App.4th 591, 606 (conc. opn. of Davis, J.) [explaining how, due to a clerical error, a published decision remained on the books despite having been vacated by the rendering court].)
However, for purposes of this appeal we will assume Quintanilla remains citable. In Quintanilla, the trial court modified an instruction designed for use when uncharged domestic abuse is introduced to show a defendant’s propensity to commit such abuse, under Evidence Code section 1109, analogous to Evidence Code section 1108, applicable to uncharged sexual conduct. The modification allowed the jury “to draw a propensity inference from other charged domestic violence offenses.” (Quintanilla, supra, 132 Cal.App.4th at p. 579.) In part, Quintanilla held: “Here the trial court told the jury to consider charged offenses under the preponderance standard for purposes of drawing a propensity inference, while also weighing the same evidence under the reasonable doubt standard for purposes of deciding Quintanilla’s guilt on each charge. Such mental gymnastics may or may not be beyond a jury’s ability to perform, but we are confident they are not required by [Evidence Code] section 1109.” (Id. at p. 583; but see id. at pp. 584-589 (conc. & dis. opn. of Pollack, J.) [disagreeing on this point]; Wilson, supra, 166 Cal.App.4th at pp. 1048-1052 [questioning Quintanilla].)
But in this case, the two incidents identified by the challenged instruction were both uncharged incidents, namely, defendant’s act of intercourse with the victim at the racetrack, and defendant’s act of passionately kissing K., another young boy. Therefore, the jury was not called on to engage in the “mental gymnastics” disapproved in Quintanilla. It assessed the evidence of the uncharged incidents by the preponderance of the evidence standard, and the evidence of the charged offenses, including defendant’s propensity towards young boys, by the reasonable doubt standard. This is a normal occurrence in propensity cases, and we see no reason why CALCRIM No. 1191 would cause any confusion for the jury in this particular case.
III
Presentence Credits
Because defendant was ordered to register as a sex offender, she is not eligible for the enhanced presentence credits provided by recent amendments to Penal Code section 4019. (See Pen. Code, § 4019, subds. (b)(2) & (c)(2).)
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., CANTIL-SAKAUYE, J.