Filed 7/14/15 P. v. Feaster CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LEE A. FEASTER,

Defendant and Appellant.

 B253088

 (Los Angeles County

 Super. Ct. No. BA394866)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Stephen A. Marcus, Judge. Affirmed.

Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. 

Leszkay and Esther P. Kim, Deputy Attorneys General, for Plaintiff and 

Respondent.
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A jury convicted appellant Lee A. Feaster of one count of forcible oral 

copulation. (Pen. Code, § 288a, subd. (c)(2)(a).)1 His sole contention on appeal is 

that the trial court abused its discretion in admitting a recording of a 911 telephone 

call. We find no abuse of discretion and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

The victim, Belinda M., met appellant in 2009 when she worked for 

appellant’s sister, Linda. Appellant was interested in Belinda romantically, but she 

told appellant she only wanted to be friends with him. Belinda lost touch with 

appellant when he moved out of the Los Angeles area in July 2009. Belinda lost 

her hearing in 2010 because of a brain tumor. 

On March 6, 2012, around 9:30 p.m., appellant showed up at Belinda’s 

home. After Belinda told him that she had lost her hearing, appellant started to

cry. Belinda did not want her family to see him crying, so she suggested they talk

in his car. 

Appellant and Belinda decided to visit Linda. Appellant, Belinda, and Linda 

had dinner together, but after a few hours, appellant became angry and upset. 

Belinda asked appellant to take her home. 

Instead of taking Belinda home, appellant drove to a liquor store and then to 

his house. Appellant was drinking alcohol while driving. Belinda realized from 

his mannerisms and his reckless driving that appellant was becoming angry, but 

she could not hear what he was saying. She became afraid and tried to dial 911, 

but appellant hit the phone out of her hand. She picked up the phone and put it in 

her pocket. 

 

1 Unspecified statutory references will be to the Penal Code.
3

When appellant stopped the car at his house, Belinda got out of the car and 

started walking away. Belinda saw appellant coming toward her, so she retrieved

her phone, dialed 911, and placed it back in her pocket. She told appellant she 

would catch a bus and tried to walk away, but he grabbed her and began to drag 

her back to the car. Belinda struggled with him, fell to the ground, and started 

yelling for help. Appellant hit Belinda, put her in the car, and drove away. 

Appellant stopped the car, removed his pants, and forced Belinda’s head 

onto his penis. Belinda decided to cooperate with him because she was afraid he 

would harm her if she did not. Appellant held Belinda’s head down, so she 

performed oral copulation and he ejaculated. Appellant motioned for Belinda to 

remove her pants. Appellant tried to have sex with her, but he was unable to

because his penis was flaccid. 

Arnita Bilal, a police service representative, answered Belinda’s 911 call. 

Bilal was unable to determine the exact location of the caller, but she stayed on the 

line to listen and directed officers to various locations to try to find the caller. She 

remained on the line because the sounds she heard made her “terrified” for the 

caller. 

A recording of the 911 call was played for the jury over defense counsel’s 

objections. During the call, Belinda repeatedly told appellant that he was 

frightening her by trying to hit her and taking out his anger on her. Appellant 

threatened Belinda, asking her, “Do you want to live?! Yes or no?” He threatened 

to hurt her and told her, “Suck my dick now!” The People also played a silent 

portion of the tape which they contended contained the sounds of oral copulation. 

Los Angeles Police Department Officer Al Vicencio responded to the 911 

call and was directed to several locations by the dispatcher. When he and his 

partner pulled up behind appellant’s car and ordered the occupants out of the car, 
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the police dispatchers said they could hear the officers’ voices through the phone. 

Officer Vicencio therefore knew this was the correct call. 

Officer Vicencio asked Belinda, who appeared nervous, if everything was all 

right. When Belinda did not respond, he realized she could not hear, so he wrote 

down his question for her. Belinda told him appellant punched her, shoved her in 

his car, and forced her to have sex with him. 

Defense Evidence

Appellant testified that he and Belinda developed a romantic and sexual

relationship after they met in 2009. He sent her money a few times after he moved 

away, but they lost contact around 2010. He decided to visit her on March 6, 2012, 

because he knew she had lost her hearing, and he was concerned about her. On his 

way to her house, he stopped at a liquor store and bought alcohol, which he drank 

as he drove. 

While appellant and Belinda were talking in appellant’s car, appellant asked

if they could have sex, and Belinda said maybe. Belinda asked appellant for 

money to buy Vicodin, so he gave her money and drove her somewhere to buy the 

pills. They drove to Linda’s house and ate dinner. 

After leaving Linda’s house, Belinda asked appellant to buy her more 

Vicodin pills, so he gave her $20 and she bought more. At some point during the 

car ride, appellant noticed that Belinda had taken $20 more from him. He became

angry and told her that he would have given her money if she had asked. They 

began arguing while standing outside his house. He held her arms to calm her 

down because she was “going into a tantrum.” Appellant testified that he was 

afraid to leave Belinda alone outside the house, so he put her back in the car, but 

she tripped and fell. He denied hitting her. He acknowledged that Belinda 
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performed oral sex, but he testified that it was consensual, and that she was the one 

who initiated having sex. 

Appellant identified his voice on the 911 call. He attributed the angry things 

he said to being under the influence of alcohol. 

James Lloyd, appellant’s former roommate, testified that Belinda had 

frequently spent the night with appellant. Lloyd heard appellant and Belinda 

arguing outside his house on the night of the incident. He told them to leave 

because they were too loud, so appellant and Belinda got in the car and drove 

away. 

Rebuttal Evidence

The People entered into evidence a recording of appellant’s interview with 

Los Angeles Police Detective Johnny Durden. 

Procedural Background

Appellant was charged with three counts: (1) forcible oral copulation

(§ 288a, subd. (c)(2)(a)); (2) forcible rape (§ 261, subd. (a)(2)); and (3) kidnapping 

to commit another crime (§ 209, subd. (b)(1)). As to counts 1 and 2, the 

information alleged that appellant kidnapped the victim to commit the offenses. 

(§ 209.) The information further alleged that appellant had suffered one prior 

strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior serious felony 

conviction (§ 667, subd. (a)(1)). 

The jury found appellant guilty of count 1, forcible oral copulation, but 

found not true the allegation that appellant kidnapped the victim. The jury found 

him not guilty of the charged and lesser included offenses in count 2 and not guilty 

of count 3. The court declared a mistrial as to the lesser included offenses in count 
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3. Appellant admitted the prior conviction allegations. The trial court sentenced 

appellant to the mid term of 6 years, doubled pursuant to the Three Strikes law, 

plus 5 years for the prior serious felony conviction, for a total of 17 years. 

After appellant was sentenced, the People filed an amended information 

charging appellant with one count of kidnapping and alleging two prior strikes, two 

prior serious felony convictions, and six prior prison terms. The People withdrew 

the amended information, and appellant agreed to plead guilty to the lesser 

included offense of simple kidnapping in the original information and to admit a 

prior strike. The court sentenced appellant to an additional term of 6 years to be 

served consecutive to the sentence imposed on count 1. 

DISCUSSION

Appellant challenges the trial court’s admission of the 911 tape. He

contends that the tape was not properly authenticated and that the admission of the 

silent portion of the tape was more prejudicial than probative. We find no error.

Defense counsel objected to the introduction of the recording of the 911 call 

on the basis that there was no authentication that the voices on the recording 

belonged to appellant and Belinda. Belinda was unable to identify her voice 

because she could not hear. The court admitted the tape on the grounds that “the 

time situations all support the proper foundation,” and that Bilal was able to 

identify her voice on the tape. 

The People subsequently sought to introduce a 10-minute long portion of the 

tape that contained no speaking but that the People argued contained “the sucking 

sound” of the oral copulation. Defense counsel objected on the ground that the 

jury would be told the sound was oral copulation even though “it could be 

something totally different.” The court reasoned that “we don’t have a witness 
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who can actually hear and say that that’s me or that’s the sound, that I remember 

that sound.” Thus, the court decided that the jury could decide how much weight 

to give the recording, and defense counsel “can argue that the sound is 

meaningless, and [the prosecutor] can argue that it reflects a sexual act.” The court

admitted the recording, holding that there was a sufficient foundation and it was 

clearly relevant. 

However, after playing five minutes of the recording for the jury, the court 

asked the prosecutor to stop the recording and called a sidebar. The court stated, “I 

don’t hear any sucking noises or anything like that,” and questioned the “need to 

listen to silence.” The prosecutor argued that it showed the length of time until the 

police arrived, but the court told the prosecutor to fast forward the tape. Bilal 

testified that the noises and voices on the tape were the sounds she heard during the 

911 call. She described the sounds she heard as “sucking, suction noises.” 

Appellant identified his voice on the 911 call. 

I. Applicable Law

“This court reviews claims regarding a trial court’s ruling on the 

admissibility of evidence for an abuse of discretion. [Citation.]” (People v. 

Dawkins (2014) 230 Cal.App.4th 991, 1001 (Dawkins).) “[W]e will not disturb the 

trial court’s ruling ‘except on a showing the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner that resulted in a manifest 

miscarriage of justice.’ [Citation.]” (People v. Goldsmith (2014) 59 Cal.4th 258, 

266.)

“Audio recordings are writings as defined by the Evidence Code. (Evid. 

Code, § 250.) ‘To be admissible in evidence, a writing must be relevant and 
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authenticated. ([Evid. Code,] §§ 350, 1401.)” (Dawkins, supra, 230 Cal.App.4th

at p. 1002, fn. omitted.)

“An audio recording is typically authenticated by showing it is a reasonable 

representation of that which it is alleged to portray. [Citation.] Typically, a party 

to the conversation recorded is called to testify to the audio recording’s accuracy. 

However, the foundation may, but need not, be supplied by the person witnessing 

the event being recorded. It may be supplied by other witness testimony, 

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

including statutory presumption. [Citation.]” (Dawkins, supra, 230 Cal.App.4th at 

p. 1002.)

II. The Tape Was Properly Authenticated

Appellant contends that the prosecution did not properly authenticate the 

911 tape, relying on O’Laskey v. Sortino (1990) 224 Cal.App.3d 241, disapproved 

on other grounds in Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768, 774-776,

and footnote 4. O’Laskey is distinguishable.

O’Laskey held that a tape recording of a phone call was not properly 

authenticated because the tape itself was not offered into evidence and there was 

no declaration from the person who recorded the call describing “when, where, 

how or by whom the tape was made.” (O’Laskey, supra, 224 Cal.App.3d at p. 

249.) Instead, the proponent of the evidence offered a transcript of the call and a 

declaration by his attorney describing the circumstances of the recording. The 

circumstances therefore are quite different from those presented here.

Unlike O’Laskey, both the recording of Belinda’s call and the transcript 

were offered into evidence. In addition, the testimony of Bilal, the 911 operator, 

was sufficient to authenticate the recording because she was a party to the 
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recording. (Dawkins, supra, 230 Cal.App.4th at p. 1002.) She testified that she 

answered the call from Belinda and stayed on the line with her in order to direct 

officers to her location. She described the circumstances of the call, identified her 

own voice on the call, and testified that the noises on the tape were the noises she 

heard during the 911 call. 

Other circumstances of the call further authenticated the recording. Belinda 

testified that she called 911 and placed the phone in her pocket. The time frame of 

the call was consistent with Bilal’s testimony, and Officer Vicencio testified that 

the operator told him his voice was heard in the call. Finally, appellant identified 

his voice on the recording. 

The tape was properly authenticated by the testimony of parties to the 

recording and by circumstantial evidence. (Dawkins, supra, 230 Cal.App.4th at p. 

1002.) The trial court did not abuse its discretion in admitting the recording.

III. The Tape Was Not More Prejudicial Than Probative

Appellant contends that the silent portion of the 911 call, even if properly 

authenticated, was more prejudicial than probative and thus should have been

excluded under Evidence Code section 352. However, he has forfeited appellate 

review of the issue by not objecting on that specific ground in the trial court. 

(People v. Chism (2014) 58 Cal.4th 1266, 1292-1293.)

“A trial court may exclude otherwise relevant evidence when its probative 

value is substantially outweighed by concerns of undue prejudice, confusion, or 

consumption of time. [Citations.] ‘“‘Prejudice’ as contemplated by [Evidence 

Code] section 352 is not so sweeping as to include any evidence the opponent finds 

inconvenient. Evidence is not prejudicial, as that term is used in a section 352 

context, merely because it undermines the opponent’s position or shores up that of 
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the proponent. The ability to do so is what makes evidence relevant. The code 

speaks in terms of undue prejudice. Unless the dangers of undue prejudice, 

confusion, or time consumption ‘“substantially outweigh”’ the probative value of 

relevant evidence, a section 352 objection should fail. [Citation.] ‘“The 

‘prejudice’ referred to in Evidence Code section 352 applies to evidence which 

uniquely tends to evoke an emotional bias against the defendant as an individual 

and which has very little effect on the issues. In applying section 352, ‘prejudicial’

is not synonymous with ‘damaging.’” [Citation.]’ [Citation.]” (People v. Scott

(2011) 52 Cal.4th 452, 490-491 (Scott).)

Appellant contends that “[t]he silent portion of the tape did no more than 

engender sympathy for the victim” and therefore prejudicially inflamed the jurors’ 

emotions. The silent portion of the tape surely could not have engendered 

sympathy for the victim any more than the verbal portion of the tape, on which 

appellant is heard repeatedly swearing at and making threatening statements to 

Belinda. The transcript of the tape shows that Belinda repeatedly told appellant 

that she was afraid and felt threatened by him. She screamed, “Please don’t hit 

me!” when appellant told her to get in the car, and she pleaded for someone to help 

her. Appellant threatened to kill Belinda and told her to “suck [his] dick.” The 

silent portion of the tape merely corroborated Belinda’s testimony that she was

forced to perform oral copulation after being threatened by appellant. The 

admission of the silent portion of the tape therefore “shore[d] up” the prosecution’s 

position without being unduly prejudicial. (Scott, supra, 52 Cal.4th at p. 490.)
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P.J.

We concur:

MANELLA, J.

COLLINS, J.