Filed 10/14/14 P. v. Perry CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 sent ence of the second full paragra ph under the title "Instagram," the names "Alicia Valdez" and "Miguel Vald ez" 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There is no change in the judgment.Filed 9/29/14 (unmodified version) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 fo llowing conviction of first degree murder, with findings that he personally discharged a firear m causing death, and that he
committed the criminal offense to benefit a cr iminal 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 sc hool along Lanzit Avenue in South Los Angeles. Perry walked toward them, bumped Gongora, and as ked, "Where you from?" Gongora replied, "Sur." Perry then "p opped out" a firearm from his waistb and 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 vehi cle 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 re d 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 1 12th Street. Perry wore a sleeveless white shirt with a red design, gray rolled-up pants, and shoes with a red co lor. Perry's left hand was free but his right hand was tu cked underneath his shirt near his waist. Alicia took a photograph of Perry from behind. K. later selected Perry's photogra ph from a police photographic lineup as "look[ing] like [the shoote r] a little bit." Se ven 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, "B ounty Hunter Bloods." Perry 's moniker was "Midnight" and that word was tattooed on his back. A poli ce field identification card dated January 2, 2010, documented Perry's gang membership, m oniker, physical characteristics (tall, lean build) and red shoes. Gang enforcement police officer Manuel Moreno tes tified that the Bounty Hunter Bloods is a large African-American gang in South Los Angeles. Gang members wear the color red, commit violent crimes, in cluding 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 with in the Nickerson Gardens housing project, and "Belhaven," a referen ce to Belhaven Street.
Moreno stated that in 2 010 an Hispanic criminal st reet gang, the "Mid City Stoners," moved into the Blood s' 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 retalia te for the shooting of Becker. Following the shooting, Pe rry went to Clinton, Missi ssippi, to live with his former girlfriend. Courtney Mack, the sister of Perry's former girlfrie nd, testified at trial that Perry behaved "strange[ly]," used the cellular telephones of others rather than his own, and stated that he wo uld not contact a local relativ e in Mississippi because the relative "might turn him in." Later, Perry admitted "point bl ank" that he shot "[s]ome Mexican," the victim's little brother witnesse d the shooting, and a neighbor p hotographed
him from behind. Instagram 2 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 thes e photographs of Perry: Exhi bit No. 22, posted August 18, 2012, contained the phrase, "shawlotfinest "; Exhibit No. 24, pos ted June 18, 2012, contained the caption, "Original Bounty Hunn a"; Exhibit No. 25, po sted May 15, 2012, included an image of gang member Becker and contained the caption, "Me and Thugga."
Police officers later showed witne sses K., Alicia Valdez, and Miguel Valdez another photograph of Perry from the Inst agram account. Perry's facial features were obscured in the photograph, but the witnesses identified the clothing in the photograph as similar to that wo rn by Perry during the shooting. Conviction and Sentencing The jury convicted Perry of first degree murder and found that he personally discharged a firear m causing death, and that he committed the criminal

2 As explained at trial, Instagram is a we b-based photograph and vi deo-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 cour t 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, 120 22.53, 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 a ssessment, 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 st reet gang allegation and the section 12022.53, subdivisions (b) a nd (c) firearm enha ncements. 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 a bused its discretion by admitting into evidence four Instagram photographs with re dacted captions because the evidence was not properly authenticated, wa s 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 5 09, 515-516 [insufficient evidence to authenticate photog raph of defendant's girlfrie nd flashing a purported gang sign].) Perry also claims that the Instagram evidence was testimonial hearsay that violated his Sixth Amendment right to con frontation because he had no opportunity to
cross-examine the author of the postings.
I. We review a trial court's ruling regard ing 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 au thenticated before it may be received into evidence. A photogra ph is a writing as defi ned by section 250. ( People v. Goldsmith
, supra , 59 Cal.4th 258, 266.) To authenticate a writing, the proponent must establish that the writing is wh at "the proponent of the evidence claims it is." (§ 1400, subd. (a).) T hus, 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 nece ssary is a prima facie case "].) Conflicting reasonable inferences regarding authenticity bear on th e 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 disc retion because the prosecutor presented a prima facie case of authenticity. The photogr aphs 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 na me 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 Beck er, 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 admitte d committing the murder to his friend in Mississippi and his admissions we re consistent with details of the killing. K. identified Perry from a photographic lineup and Alicia Valadez took a photograph of Perry from the6 back. Perry was also an admitted member of the Bounty Hunter Bl oods and his moniker, tattoo, and red shoes were al ready known to police officers . Los Angeles Police Officer
Jesse Pineda had obtained field identifica tion information from Perry and Becker who were together on May 31, 2012, several mont hs 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, confus ion, and undue consumption of time. ( People v. Mehserle (2012) 206 Cal.App.4th 11 25, 1154.) The court may exclude the evidence if these dangers substantially outweigh th e 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 disc retion 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 ruli ng was not arbitrary or unreasonable. ( People
v. Mehserle
, supra , 206 Cal.App.4th 1125, 1154 [standard of review].)
III. Perry has forfeited his confrontati on 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 confrontatio n 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 hearsa y as statutorily defined]; People v. Cooper (2007) 148 Cal.App.4th 731, 746 [videotape evidence is not testimonial7 and not hearsay].) Application of this ru le 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.