Marvin Wren and Antonio Toy were convicted of (i) attempted
murder in violation of California Penal Code §§ 187 and 664 and (ii) burglary
in violation of California Penal Code § 459.
People v. Toy, 2013 WL 500500
(California Court of Appeals 2013).
After they were convicted, the trial judge “imposed a sentence of life
plus three years for Wren, and a sentence of life plus life plus twenty-five
years to life for Toy.” People v. Toy, supra. Both then appealed their convictions. People
v. Toy, supra.
According to this opinion, in
2009, Wren and Toy (collectively,
Defendants) were friends with one another and members of the East Side 87
Kitchen Crips gang. Defendants were also friends with Andrea Bryant, and are
cousins to three of Bryant's children.
People v. Toy, supra.
The opinion explains that the charges against Wren and Toy
arose from these events:
In April 2009, Wren made it clear he
disliked Bryant's boyfriend, Justin Matthews. Earlier that month, Matthews had
not helped Wren when Wren got into a fist fight while defending Bryant's good
name. Wren was still angry with Matthews in early October 2009, when he told
Bryant, `[I]f I catch [Matthews] outside your house, I'll bust his head.’
On October 11, 2009, Toy shot Matthews.
Earlier that morning, Toy had stopped by Bryant's apartment to visit and had
looked around the apartment as he chatted with Bryant. After Toy left, Bryant
walked to the apartment upstairs to see her cousin, Kendra Evans. Wren was
there, and immediately stopped talking once Bryant entered the apartment.
Wren appeared to be angry with Bryant.
When Bryant returned to her apartment, Wren followed her without saying a word,
and sat down on the flowerbed three feet in front of the door to her apartment.
Wren pulled out his cell phone and
appeared to be typing something. Moments later, Bryant glanced at her cell
phone. She and Wren regularly used their phones to converse using AOL's Instant
Messenger program. Bryant noticed that the status message for Wren's account
had changed.
It had read `Available’ before Bryant
went to Evans's apartment, but had since been changed to read: `LETS C DIS KLWN
CUM OUT DAT HSE, LOL, LET ME SHOW DAT ASS HOW SERIOUS IAM BITCH. DIIIS KITCHEN
THIRSTY BITCHES.’
Toy and Wren watched Bryant leave the
apartment complex. Minutes later, someone started knocking at the front door
and all the windows of Bryant's apartment. Almost immediately after the
knocking stopped, someone slid open the window in the master bedroom where
Matthews was dozing.
Matthews jumped up off the bed just in
time to see a gun and torso in a blue jacket emerge from behind the blinds. Toy
had been wearing a blue jacket earlier that morning.
Matthews saw Toy's face
and they asked each other `What's up?’ Toy then shot Matthews in the leg and
shot at him a second time but missed. Bryant never saw Wren or Toy again.
People v. Toy, supra.
On appeal, Toy and Wren argued that argue that the trial judge
“erred in admitting evidence that Wren updated the status message of his AIM
account.” People v. Toy, supra. In a footnote, the court explains that the
trial judge
admitted this evidence after an
evidentiary hearing at which Bryant explained how AIM works. She testified that
a user creates a username and password and gives that username to others who
then add the user as a `buddy.’ The user can then either send person-to-person
instant messages or can broadcast a `status’ update to all `buddies.’
People v. Toy, supra.
And in another footnote, the court explains that the jury
heard Bryant's testimony on this point
and saw a photograph Bryant took of her cell phone displaying the update. On appeal,
Defendants do not dispute that the photograph accurately depicted what was on
the phone. Instead, they focus on whether Wren sent the update.
People v. Toy, supra.
The defendants made two arguments as to why the judge should
not have admitted the evidence, the first of which was that
the status update was not properly
authenticated. In their view, Bryant could not authenticate the update because
she was not physically present when Wren allegedly typed the update, because
she did not work for AOL, and because someone pretending to be Wren could have
updated his status.
People v. Toy, supra.
The Court of Appeals began its analysis of this argument by
noting that to
authenticate a `writing’ . . ., its
proponent must present enough evidence ‘”. . . to permit the trier of fact to
find that it is authentic. . . .”’ (People v. Valdez, 201 Cal. App.4th
1429, (California Court of Appeals 2011)). Authentication is a flexible concept,
and there are many ways to establish that a writing is authentic.
The Court of Appeals found that the prosecution met its
threshold burden in this case. Bryant
testified that the update was posted from the same AIM account she had used to
communicate with Wren for nearly two years. (U.S. v. Owens (U.S.District Court for the District of Massachusetts 2010) 2010 U.S. Dist. LEXIS
37134 [extended use of online channel of communication may authenticate].
Wren often used his phone to access
AIM, and both Bryant and Matthews saw Wren typing on his phone during the
window of time Wren's status was updated. (California Evidence Code § 1413 [`A
writing may be authenticated by anyone who saw the writing made or executed. .
.’].)
The update also included content tied
to Wren. The update referred to the author as `[This] Kitchen’ and Wren
belonged to the Kitchen Crips gang. Moreover, the author dared `[this clown]’
to leave the `[house],’ just as Wren had warned Bryant that Matthews should not
do.
Moreover, Wren's account was password
protected, making it more difficult for someone to hack his account. . . . The
sum of this circumstantial evidence is sufficient to permit a jury to find that
Wren updated the status of his own AIM account. . . .
People v. Toy, supra.
The court also noted that it was not
persuaded by Defendants' arguments to
the contrary. They cite no precedent in support of their contention that authentication
requires testimony by an AOL employee
or by someone looking over Wren's shoulder. Nor will we adopt such rigid rules
because they would be at odds with our common-sense approach to authentication.
People v. Toy, supra.
Toy and Wren also relied on the California Court of Appeals' decision
in People v. Beckley, 185 Cal. App.4th
509 (2010),
for the proposition that the People did
not meet its burden because `”. . . hackers can adulterate the content of any
website from any location at any time.”’ People v. Beckley, supra. As an initial
matter, Beckley is distinguishable on its facts.
In Beckley, the People
sought to authenticate a photograph found on a website, but presented no
testimony that the photograph accurately depicted the event photographed and no
expert testimony that the photograph was genuine and not altered digitally. The
primary issue here is not a photograph, but whether Wren was the author of the
status update.
We decline to read Beckley 's
language as a broader condemnation of evidence harvested from the online world.
Such a reading would be inconsistent with the emerging body of law upholding
the admission of instant messages even when the author cannot be known with
certainty. . . .
Such a reading would also reject a fundamental principal
underlying authentication: ‘”. . . The fact that conflicting inferences can be
drawn regarding authenticity goes to the document's weight as evidence, not its
admissibility.”’ People v. Valdez, supra.
People v. Toy, supra.
So the court held that the trial judge did not err by finding that there “was
sufficient evidence to sustain the admission of the status update.” People
v. Toy, supra.
The defendants’ second argument was that “the probative
value of the update was substantially outweighed by the dangers of unfair prejudice
and misleading the jury.” People v. Valdez, supra. More precisely, they argued that “the update
should have been excluded as substantially more prejudicial than probative
under [California] Evidence Code section 352.” People
v. Toy, supra.
Section 352 provides that “[t]he court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” People
v. Toy, supra.
Wikipedia cites, as an example of when evidence should not
be admitted under this standard, a California case in which the Court of
Appeals found that
evidence that the victim of a car
accident was apparently a `liar, cheater, womanizer, and a man of low morals’ was
unduly prejudicial and irrelevant to whether he had a valid product
liability claim against the manufacturer of the tires on his van (which
had rolled over resulting in severe brain damage).
Here, the Court of Appeals was not persuaded that the
admission of the update was improper under California Evidence Code § 352. People v. Toy, supra. It explained that
[t]he court did not abuse its
discretion. The update was quite probative of Wren's intent and his motive. Nor
was its value substantially undercut by Wren's decision not to be overly
detailed in laying out his exact plan for how he was going to `show [that] ass
how serious’ he was.
Although certainly prejudicial to
Defendants, the update was not unfairly prejudicial. For these
reasons, the trial court's balancing of these considerations was not
erroneous.
People v. Toy, supra
(emphasis in the original).
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