Filed 10/14/14 P. v. Perry CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

AHMAD PERRY, 

 Defendant and Appellant. 

2d Crim. No. B252617 

(Super. Ct. No. TA125812-01) 

(Los Angeles County) 

ORDER MODIFYING OPINION 

[NO CHANGE IN JUDGMENT] 

THE COURT: 

It is ordered that the opinion filed herein on September 29, 2014, be modified as follows: 

On page 3, in the first sentence of the second full paragraph under the title "Instagram," 

the names "Alicia Valdez" and "Miguel Valdez" are changed to "Alicia Valadez" and 

"Miguel Valadez." 

There is no change in the judgment. 
Filed 9/29/14 (unmodified version) 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

AHMAD PERRY, 

 Defendant and Appellant. 

2d Crim. No. B252617 

(Super. Ct. No. TA125812-01) 

(Los Angeles County) 

 Ahmad Perry appeals a judgment following conviction of first degree 

murder, with findings that he personally discharged a firearm causing death, and that he 

committed the criminal offense to benefit a criminal street gang. (Pen. Code, §§ 187, 

subd. (a), 189, 12022.53, subds. (b)-(d), 186.22, subd. (b)(1)(C).)1

 We affirm. 

FACTUAL AND PROCEDURAL HISTORY 

 In the morning of August 20, 2012, Armando (Ulysses) Gongora walked 

his younger brother K. to school along Lanzit Avenue in South Los Angeles. Perry 

walked toward them, bumped Gongora, and asked, "Where you from?" Gongora replied, 

"Sur." Perry then "popped out" a firearm from his waistband and shot Gongora twice in 

the chest. Gongora collapsed and died from gunshot wounds to his heart and other vital 

organs. Frightened, K. hid behind a vehicle as Perry ran down the street. 

 

1

 All further statutory references are to the Penal Code unless otherwise stated. 
2 

 K. later described Perry as a tall, thin, dark-skinned African-American, 

wearing a white shirt with a red and white design in the middle, long gray shorts, and red 

shoes or shoes with red shoelaces. 

 Shortly after the shooting and several blocks away, Alicia Valadez and her 

adult son Miguel saw Perry running down 112th Street. Perry wore a sleeveless white 

shirt with a red design, gray rolled-up pants, and shoes with a red color. Perry's left hand 

was free but his right hand was tucked underneath his shirt near his waist. Alicia took a 

photograph of Perry from behind. 

 K. later selected Perry's photograph from a police photographic lineup as 

"look[ing] like [the shooter] a little bit." Seven months later, K. reviewed the 

photographic lineup and stated to a defense investigator that he did not recall why he 

selected Perry's photograph. 

 Perry was known to Los Angeles police officers as an admitted member of 

the criminal street gang, "Bounty Hunter Bloods." Perry's moniker was "Midnight" and 

that word was tattooed on his back. A police field identification card dated January 2, 

2010, documented Perry's gang membership, moniker, physical characteristics (tall, lean 

build) and red shoes. 

 Gang enforcement police officer Manuel Moreno testified that the Bounty 

Hunter Bloods is a large African-American gang in South Los Angeles. Gang members 

wear the color red, commit violent crimes, including murders, robberies, and rapes, and 

are "pretty good at their job." The gang consists of 10 to 12 cliques, including the 

"Shawlots," a reference to a parking lot within the Nickerson Gardens housing project, 

and "Belhaven," a reference to Belhaven Street. 

 Moreno stated that in 2010 an Hispanic criminal street gang, the "Mid City 

Stoners," moved into the Bloods' neighborhood. Members of each gang then committed 

crimes against the other gang. In April 2012, a Mid City Stoners gang member shot 

admitted Bounty Hunter Bloods gang member DeJuan Becker ("Thugga") in the arm. 
3 

Moreno opined that Gongora's death benefited the Bounty Hunter Bloods because the 

crime was committed in part to retaliate for the shooting of Becker. 

 Following the shooting, Perry went to Clinton, Mississippi, to live with his 

former girlfriend. Courtney Mack, the sister of Perry's former girlfriend, testified at trial 

that Perry behaved "strange[ly]," used the cellular telephones of others rather than his 

own, and stated that he would not contact a local relative in Mississippi because the 

relative "might turn him in." Later, Perry admitted "point blank" that he shot "[s]ome 

Mexican," the victim's little brother witnessed the shooting, and a neighbor photographed 

him from behind. 

Instagram2

 On August 30, 2012, Los Angeles Police Officer Owen Berger served a 

search warrant on the social media website Instagram, seeking information for the 

account "SL_Midnight112." In response, Berger obtained 119-pages of electronic 

documents, including photographs with captions and comments, and user information. 

The photographs included these photographs of Perry: Exhibit No. 22, posted August 18, 

2012, contained the phrase, "shawlotfinest"; Exhibit No. 24, posted June 18, 2012, 

contained the caption, "Original Bounty Hunna"; Exhibit No. 25, posted May 15, 2012, 

included an image of gang member Becker and contained the caption, "Me and Thugga." 

 Police officers later showed witnesses K., Alicia Valdez, and Miguel 

Valdez another photograph of Perry from the Instagram account. Perry's facial features 

were obscured in the photograph, but the witnesses identified the clothing in the 

photograph as similar to that worn by Perry during the shooting. 

Conviction and Sentencing 

 The jury convicted Perry of first degree murder and found that he 

personally discharged a firearm causing death, and that he committed the criminal 

 

2

 As explained at trial, Instagram is a web-based photograph and video-sharing platform 

through which users host and share user-generated content. It provides an application for 

mobile devices that allows users to upload photos, apply digital filters to those photos, 

and share them with others. 
4 

offense to benefit a criminal street gang. (§§ 187, subd. (a), 189, 12022.53, subds. (b)-

(d), 186.22, subd. (b)(1)(C).) The trial court sentenced Perry to 50 years to life 

imprisonment, consisting of 25 years to life for the murder conviction and 25 years to life 

for the firearm enhancement. (§§ 190, 12022.53, subd. (d).) The court imposed a $280 

restitution fine, a $280 parole revocation restitution fine (stayed), a $40 court security 

assessment, and a $30 criminal conviction assessment, and awarded Perry 289 days of 

actual presentence custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a)(1); 

Gov. Code, § 70373.) It stayed sentence for the criminal street gang allegation and the 

section 12022.53, subdivisions (b) and (c) firearm enhancements. 

 Perry appeals and contends that the trial court erred by admitting evidence 

of Instagram user information and four photographs, over defense objection. 

DISCUSSION 

 Perry argues that the trial court abused its discretion by admitting into 

evidence four Instagram photographs with redacted captions because the evidence was 

not properly authenticated, was hearsay, and was unduly prejudicial. (Evid. Code, 

§§ 1400, 1401, 1200, subd. (a), 352.)3

 In part, he asserts that the prosecutor did not 

present sufficient evidence that the photographs and captions were not fake, altered, or 

composite. (People v. Beckley (2010) 185 Cal.App.4th 509, 515-516 [insufficient 

evidence to authenticate photograph of defendant's girlfriend flashing a purported gang 

sign].) 

 Perry also claims that the Instagram evidence was testimonial hearsay that 

violated his Sixth Amendment right to confrontation because he had no opportunity to 

cross-examine the author of the postings. 

I. 

 We review a trial court's ruling regarding the admissibility of evidence for 

an abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) Thus, we will 

 

3 All further statutory references are to the Evidence Code. 
5 

affirm the evidentiary ruling unless the court acted in an arbitrary or unreasonable 

manner. (Ibid.) 

 Section 1401, subdivision (a) requires that a writing be authenticated before 

it may be received into evidence. A photograph is a writing as defined by section 250. 

(People v. Goldsmith, supra, 59 Cal.4th 258, 266.) To authenticate a writing, the 

proponent must establish that the writing is what "the proponent of the evidence claims it 

is." (§ 1400, subd. (a).) Thus, the proponent must present "sufficient evidence for a trier 

of fact to find that the writing is what it purports to be." (Goldsmith, at p. 267 

["Essentially, what is necessary is a prima facie case"].) Conflicting reasonable 

inferences regarding authenticity bear on the document's weight as evidence, not its 

admissibility. (Ibid.) 

 A photograph is usually authenticated by showing that it is an accurate and 

fair representation of the scene depicted. (People v. Goldsmith, supra, 59 Cal.4th 258, 

267.) It may be authenticated by the person taking the photograph, by a witness to the 

event, circumstantial evidence, content, location, or any other means provided by law. 

(Id. at p. 268.) 

 The trial court did not abuse its discretion because the prosecutor presented 

a prima facie case of authenticity. The photographs obviously depicted Perry, as the trial 

judge remarked: "I mean, quite candidly, there is no doubt, whatsoever, in my mind, in 

looking at some of these photographs, that it's [Perry]." The name of the Instagram 

account was Perry's moniker and the account was password protected. Perry was an 

admitted member of the Bounty Hunter Bloods, as was Becker, and both men were well 

known to gang enforcement police officers. The photographs were relevant to the 

identity of Gongora's killer (by his clothing) and to proof of Perry's gang membership. 

 In any event, any error concerning authentication is harmless pursuant to 

any standard of review. Perry admitted committing the murder to his friend in 

Mississippi and his admissions were consistent with details of the killing. K. identified 

Perry from a photographic lineup and Alicia Valadez took a photograph of Perry from the 
6 

back. Perry was also an admitted member of the Bounty Hunter Bloods and his moniker, 

tattoo, and red shoes were already known to police officers. Los Angeles Police Officer 

Jesse Pineda had obtained field identification information from Perry and Becker who 

were together on May 31, 2012, several months prior to Gongora's murder. Thus, any 

error is harmless. 

II. 

 Section 352 requires the trial court to weigh the probative value of evidence 

against the dangers of prejudice, confusion, and undue consumption of time. (People v. 

Mehserle (2012) 206 Cal.App.4th 1125, 1154.) The court may exclude the evidence if 

these dangers substantially outweigh the evidence's probative value. (Ibid.) We review 

the court's ruling for an abuse of discretion. (People v. Homick (2012) 55 Cal.4th 816, 

865.) 

 The trial court did not abuse its discretion pursuant to section 352 because 

the probative value of the photographs and their captions outweighed any undue 

prejudice. The photographs were probative of the identity of the shooter and his gang 

membership. Moreover, cognizant of its duties pursuant to section 352, the court 

redacted portions of the captions to preclude any undue prejudice, i.e., "out blazin," and 

"Good morning, bitches." The court's ruling was not arbitrary or unreasonable. (People 

v. Mehserle, supra, 206 Cal.App.4th 1125, 1154 [standard of review].) 

III.

 Perry has forfeited his confrontation clause claim because he did not 

specifically object on this basis in the trial court. (People v. Skiles (2011) 51 Cal.4th 

1178, 1189 [failure to object on Sixth Amendment confrontation ground forfeits appellate 

claim].) 

 Forfeiture aside, the photographs are not testimonial statements and cannot 

constitute hearsay for that reason. (People v. Goldsmith, supra, 59 Cal.4th 258, 274-275 

[traffic camera photographs and video do not constitute hearsay as statutorily defined]; 

People v. Cooper (2007) 148 Cal.App.4th 731, 746 [videotape evidence is not testimonial 
7 

and not hearsay].) Application of this rule necessarily defeats Perry's confrontation 

clause argument. (Goldsmith, at p. 275.) 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 GILBERT, P.J. 

We concur: 

 YEGAN, J. 

 PERREN, J. 
8 

Patrick Connolly, Judge 

Superior Court County of Los Angeles 

______________________________ 

 Sharon M. Jones, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, 

Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.