Filed 3/3/15 P. v. Sissac CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064910

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE315928)

DEMETRIUS SISSAC,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Herbert J.

Exarhos, Judge. Affirmed.

         Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and

Respondent.

         The San Diego County District Attorney charged Demetrius Sissac with first

degree, special circumstance murder (Pen. Code, § 187, subd. (a)) in connection with the
October 30, 2011 shooting of taxicab driver Jalaludin Hamrah, alleging that Sissac shot

and killed Hamrah with premeditation and deliberation through the intentional and

personal use and discharge of a handgun (Pen. Code, § 12022.53, subds. (b), (c), & (d)),

while knowing that Hamrah was engaged in the performance of his duties (Pen. Code, §

190.25).

       The jury hopelessly deadlocked on the first degree murder charge, and the court

dismissed that charge on the prosecution's motion. The jury ultimately found Sissac

guilty of second degree murder with true findings on the firearm allegations. The court

sentenced him to 15 years to life for the murder conviction, plus 25 years to life for the

firearm enhancement under Penal Code section 12022.53, subdivision (d), for a total

prison term of 40 years to life.1

       Sissac appeals, contending that "a series of serious evidentiary errors, primarily

arising from the purported records of cell phone activity that the prosecution used to

argue that he essentially admitted the crime, both individually and collectively worked to

deprive [him] of his fundamental constitutional rights to due process, a fair trial, to

confront and cross-examine adverse witnesses, and to a reliable determination of guilt."2

For reasons we shall explain, we reject this contention and affirm the judgment.



1      The court also imposed 10 years and 20 years, respectively, for the firearm
enhancements under Penal Code section 12022.53, subdivisions (b) and (c), but stayed
those terms.

2      Sissac has filed a petition for a writ of habeas corpus in which he claims he
received ineffective assistance of counsel to the extent his trial counsel failed to raise
appropriate objections so as to prevent admission of the evidence challenged in this
                                              2
                               FACTUAL BACKGROUND

       A. The People's Case

       The Killing of Hamrah

       Devin Patton, who was also known as "D," was a friend of David Glenn, who was

also known as "Jodi" or "Jodi Mack." Glenn introduced Patton to Sissac, whom Glenn

knew as "Meech" or "Metrie." Sissac became one of Patton's best friends.

       On October 29, 2011, Patton went to a party in El Cajon. While there he and

Sissac texted back and forth about the party, and he convinced Sissac to join him. Sissac

arrived at the party at around 11:00 p.m. with Glenn, Glenn's cousin, Anthony Roy (Roy,

who was also known as "Little Ant"), and an unknown male.3 After about an hour or an

hour and a half, Sissac, Glenn, Roy, and the unknown male left the party. Patton stayed

behind.

       About 30 minutes later, Patton was told to leave the party. He began walking,

hoping to meet up with his friends. Patton eventually met up with the group, and the five

men walked to the El Cajon trolley stop and arrived there between 3:00 and 3:30 a.m.

The men went to the upstairs trolley platform but the trolleys were not running because it

was so late.




appeal. This court's decision with respect to Sissac's writ petition is set forth in a separate
order.

3      Patton, Glenn, and Roy all testified at trial as prosecution witnesses.

                                              3
       The victim in this case, Hamrah, drove a taxi cab. At around 3:30 a.m. on October

30, 2011, Hamrah was the first taxi driver in line waiting for customers at the El Cajon

transit station. Sissac approached Habeel Othman, another cab driver who was at the

transit station but not in the cab line. Sissac begged Othman for a ride and offered $20,

explaining it was all the money his group had.4 Othman took the money to Hamrah, who

was at the front of the cab line. Sissac then managed to obtain a $20 fare for the group to

travel to Lemon Grove.5 Glenn testified that he, Sissac, Patton, Roy, and the other male

got into Hamrah's cab. Both Patton and Glenn testified that Sissac got into the front seat

while the other four sat in the back seat.

       Patton testified that, during the taxi ride, Hamrah was making jokes, everyone was

"cool," and there was no friction. After what Patton described as a "pleasant" ride, the

cab stopped at the Lemon Grove trolley station. The five men got out of the cab and

Patton began walking away with Anthony Roy and the unknown male. After a few

moments, Patton and Roy heard a loud "pop." Patton, Roy, and the unknown male then

took off running. As they were running, Patton asked what had happened and one of the

men said, "Meech shot the cab driver." The men ran a few blocks and stopped. Roy was

crying, and Patton was confused.

       Sissac and Glenn caught up with the other men. Patton testified that Glenn yelled

at Sissac, "What the fuck did you do? Why the fuck did you do that?" Patton also

4      The fare was about $27.

5     Glenn testified Sissac said he wanted to "[d]itch a cab," which meant to get in the
cab and not pay because they had no money.
                                             4
testified that Sissac looked at Glenn with a blank look on his face and said the cab driver

had laughed or smiled at him.

       Glenn, who testified under a grant of use immunity, testified he also heard a

gunshot. Glenn testified that he asked Sissac, "What happened? What the fuck did you

just do?" Glenn also testified that he "jump[ed] in [Sissac's] face" and told him, "You

just smoked the cab driver." Glenn told Sissac they had just come from the El Cajon

trolley station, indicated there was video surveillance, and told Sissac that everybody

could "go down for this." Sissac replied that since he was "the one that did it, there's no

need to take everybody down with [him]." The five men then went home. Glenn

testified he had given a .38-caliber gun to Sissac the day before the shooting.

       San Diego Sheriff's Detective Barbra Oborski testified that she was driving

southbound on Main Street near the Lemon Grove trolley station at about 3:45 a.m. that

same morning when she saw a car stopped in the middle of the road. Deputy Oborski

stopped to investigate and observed that the car was an upside down taxi cab. The driver,

who was later identified as Hamrah, was seat-belted and hanging upside down inside the

vehicle, and was unresponsive. Hamrah was having difficulty breathing. Deputy

Oborski called for an ambulance.

       When paramedics arrived and began rendering aid to Hamrah, they removed his

shirt, which exposed a bullet hole in his right upper chest. Hamrah was pronounced dead

at 4:11 a.m. The cause of death was a gunshot wound to his chest. The bullet recovered

from Hamrah's body was consistent with having been fired from a .38-caliber weapon,

although other similar calibers could not be excluded.

                                             5
       Patton's text messages to Sissac, Patton's police interview, and Patton's recorded
pretext phone call to Sissac

       Patton testified that at 5:51 a.m. that same morning (October 30) he used his cell

phone to text Sissac and told Sissac to turn himself in to the police. Patton also testified

that Sissac responded later that he would call back. Patton further testified that he texted

Sissac a few minutes later, "You hear what I'm telling you? This is way back." Sissac

replied, "I know."6

       Patton also testified that he texted Sissac that night at 11:03 p.m. and told him to

"be a man and own up." At 11:13 p.m., Patton asked Sissac to "[d]o the right thing,

please, yo." At midnight, Sissac responded with a text message stating, "You have to

pray." Patton testified he did not receive Sissac's text until 9:00 a.m. the next morning

(October 31).

       Patton also testified that, when it appeared Sissac was not going to turn himself in,

he (Patton) left a note for his (Patton's) mother indicating that he needed to talk to her.

After Patton told his mother what had happened, she immediately called the police.

       During the evening on October 31, Deputy Sheriff Suzanne Fiske learned that a

former deputy sheriff, Kim Patton, wished to speak to her. Kim Patton, who is Patton's

mother, indicated to Deputy Fiske that Patton had left a note for her. A meeting was set

up for Patton to come to the sheriff's department for an interview later that night.




6      Additional evidence the prosecution presented at trial regarding text messages that
Patton and Sissac sent to each other will be discussed, post, in the discussion section of
this opinion.
                                              6
       Detectives Palmer and Lebitski interviewed Patton late that night and into the

early morning hours of November 1. Patton agreed to participate in a pretext phone call

to Sissac.

       During his November 1 pretext phone call to Sissac at about 10:42 p.m.─which

was recorded, transcribed, and played for the jury─Patton said to Sissac, "To do some

shit like that, like that's not my Nigga right there." Sissac responded, "Yeah, it wasn't me.

You know? You gotta, you gotta, what you gotta see is that was the devil . . . ."7 (Italics

added.)

       Following his police interview and his pretext call to Sissac, Patton left town and

relocated to the East Coast for his and his family's safety. After the preliminary hearing

in this case, the district attorney's office, at the request of Patton's mother, began

financially supporting Patton pursuant to their witness relocation program. At the time of

trial, Patton had received about $15,922 from this program to pay for his food, rent, and

cell phone.

       Additional Evidence

       A San Diego County Sheriff's Department traffic reconstruction expert opined that

Hamrah's cab had been going south when it hit a curb, went onto the sidewalk, struck a

palm tree, and rolled from the driver's side onto the roof of the cab. (3 RT 279-281.)

Inside the cab sheriff's department investigators found a loose $20 bill and Hamrah's cell

phone. Cash in the amount of $300 was found in Hamrah's pants pocket.


7      Patton's and Sissac's statements to each other during Patton's recorded pretext call
are discussed more fully, post, in the discussion section of this opinion.
                                               7
       The prosecution presented evidence showing that Glenn's DNA was found on the

back passenger interior door handle of Hamrah's taxi cab. On that date the Lemon Grove

trolley stop was monitored by seven cameras. Brown testified that at around 5:30 a.m.

that morning she received a phone call from a law enforcement officer regarding a

homicide that involved a taxicab driver. The officer requested that she retrieve

surveillance video recordings from the El Cajon and Lemon Grove trolley stations that

were recorded at around 3:00 a.m. that morning. Brown testified that the surveillance

cameras were working that morning, and she obtained the video recordings and gave

them to the officer. Brown also testified that she "was able to locate the taxicab at the El

Cajon station" and she "able to save that video, along with the individuals who went

inside the taxicab."

       At trial Patton was shown a still image taken from one of the video recordings at

the El Cajon trolley station. Using a pen to identify the men shown in the picture, Patton

identified himself, Sissac, Roy, and Glenn, and pointed out the unidentified male who

was with them at the station.

       One of the video recordings from the El Cajon trolley station was played for

Sergeant Henry Lebitski of the San Diego County Sheriff's Department, who testified that

Sissac was shown in the video walking down a ramp and speaking with the taxicab

drivers.

       B. The Defense

       James Stam, a former San Diego Police Department criminalist, opined that, based

upon the amount of gunpowder particles found on the victim and the absence of sooting,

                                             8
the bullet that killed him was fired from three or more feet away. Stam testified he

positioned a mannequin in the seat of a similar model vehicle to determine the trajectory

of the bullet. Stam opined that it was unlikely, though not impossible, that Hamrah was

sitting in a normal driving position facing forward at the time of the shot, while it was

"much more likely" that Hamrah was slightly turned around as if talking to someone in

the backseat. Stam testified that the trajectory "line[d] up with having been fired from

outside the rear door."

                                       DISCUSSION

              I. TEXT MESSAGES FOUND ON PATTON'S CELL PHONE

       Sissac contends the court prejudicially erred by admitting evidence of text

messages found on Patton's cell phone that he and Patton exchanged with each other after

the shooting incident. In support of this contention, he asserts that (1) the prosecution

failed to provide an adequate foundation to authenticate the text messages and, thus,

failed to "satisfy the authentication and reliability requirements of the business record or

past recollection recorded exceptions to the hearsay rule"; (2) "[e]ven if the prosecution

laid an adequate foundation," the "purported statements in the text messages" at issue

here "were not direct accusations that Sissac had shot Hamrah or had committed any

other specific crime" and, thus, the statements "were not admissible under the 'adoptive

admission' exception to the hearsay rule"; and (3) the "probative value [of the statements]

to the question of guilt or innocence was minimal at best given their vague and

ambiguous meaning," and, thus, the court should have excluded the evidence of the text



                                              9
messages under Evidence Code8 section 352 because the probative value of the

statements in the text messages was "substantially outweighed by the risk of undue

prejudice and confusion of the issues in allowing the prosecution to rely upon them as

evidence of Sissac's having effectively admitted that he shot Hamrah." Sissac's

contention and supporting assertions are unavailing because, even if were we to assume

the court erred in admitting the text message evidence, any such error was harmless.

       A. Background

       1. Pretrial proceedings

       In its trial brief, the prosecution argued that Sissac's out-of-court statements to

Patton were admissible as admissions of a party opponent.

       With his own trial brief, Sissac brought a motion in limine seeking to exclude the

evidence of text messages between Patton and Sissac that Sheriff personnel downloaded

from Patton's cell phone, arguing that the unauthenticated messages lacked proper

foundation and they were inadmissible hearsay because they did not constitute

admissions by a party opponent.

       The prosecution opposed Sissac's in limine motion, asserting that it would provide

a sufficient foundation at trial that would authenticate the text messages and allow a jury

to conclude that Sissac sent the messages:

          "Upon [his] arrest, [Sissac] was in possession of a cellular telephone,
          the phone number for that phone is 619-799-3642. Further, the
          People expect that Patton will testify as follows: (1) That the
          number 619-799-3642 is the number he used to communicate with


8      All further statutory references are to the Evidence Code.
                                              10
          [Sissac] via cell phone; (2) that number is programmed into his
          phone with the name 'Meech' or 'Meechie Sissac' . . . attached to it;
          (3) that he sent the text messages to that number, prompting the
          responses at issue; ( 4) that the messages were sent soon after the
          murder; and (5) . . . that he called [Sissac] about six hours after the
          text message exchange and [Sissac ] answered the phone."

       At the hearing on the parties' in limine motions, the court commented that

admission of the text messages between Patton and Sissac was subject to a foundation

being laid by the person who either sent or received the messages in order to authenticate

the messages. The court, however, noted that some of the text messages between Sissac

and Patton did not appear to have evidentiary value. The prosecutor responded that the

"string of texts" between Sissac and Patton were relevant because it showed the

chronology of events and corroborated the testimony of witnesses that Sissac was with

the group at a party. The prosecution also argued noted that Sissac's statements were

admissible as admissions of a party opponent. The court ruled that if a statement by

Sissac in a text message was an admission, "it's admissible."

       2. Trial evidence of text messages

       During trial Patton testified that Sissac, whom he called "Meech," was one of his

best friends, and Sissac's contact information was in his (Patton's) cell phone under the

name "Meech." Patton testified that he was texting "back and forth" with Sissac while he

(Patton) was at the party on the night of the murder. Patton also testified that he texted

Sissac after the murder and "asked him to do the right thing and turn himself in." The

following exchange occurred between the prosecutor and Patton:

          "[Prosecutor]: [W]hen you texted him, what did you text him if you
          recall?

                                             11
           "[Patton]: I asked him to do the right thing. I asked him to man up
           and I asked him to turn himself in because if he didn't, things were
           going to get really bad, things like this is what I was saying to him,
           things like this don't just pass over, this is a sin.

           "[Prosecutor]: Now, did you get any response from him at that
           point?

           "[Patton]: No. [Sissac] didn't text me back at that time."

       Defense counsel objected to this testimony, arguing the text messages were

inadmissible hearsay. The court overruled Sissac's hearsay objection, stating that Patton

could testify about what he had said in the text messages.

       Patton then testified that Sissac ultimately responded to his texts, but Patton did

not get the impression that Sissac was going to turn himself into the police. Patton also

testified he later told his mother what had happened, and she called the police.

       Shortly thereafter, outside the presence of the jury, defense counsel discussed

People's exhibit No. 117, which showed several text messages between Sissac and Patton.

Sissac's counsel objected that the evidence was hearsay even if Patton was on the witness

stand. The trial court responded, "It is hearsay in the classic sense that it's an out of court

statement, but [Patton] can certainly testify as to what he said."

       In the presence of the jury, the prosecutor showed Patton People's exhibit No. 116,

which depicted a portion of the text messages he and Sissac exchanged on the morning of

the crime (Oct. 30, 2011). Patton read the text messages. Patton testified that, in his first

text message to Sissac "[he] said, 'Meech, turn yourself in, Meech. This shit is not going

to be on my heart. This is crazy, Nigga. I'm so serious.'" The prosecutor then asked


                                              12
Patton, "So you sent that [text message] that morning from your phone, correct?" Patton

answered, "Yes, sir." The prosecutor then asked, "To [Sissac's] phone?" Patton replied,

"Yes, sir." The prosecutor then asked Patton what was Sissac's response, and Patton

responded, "'I'ma call you later.'"

       The prosecutor then asked Patton, "[D]id you send [Sissac] another text back a

couple [of] minutes later?" Patton replied, "I did, sir." The prosecutor asked Patton what

he said in that text, and Patton answered, "I said, 'You hear what I'm telling you? This is

way back.'" The prosecutor asked what was Sissac's response, and Patton responded, "'I

know.'"

       At that point a juror indicated he was unable to see the time of that text indicated

on the exhibit, and, at the court's request, the prosecutor then listed all the times of the

texts. Defense counsel then stated, "Your Honor, I'm going to object as to lack of

foundation for the times." In response, addressing the prosecutor, the court stated, "Well,

all right, then, ask the witness, 'Are those the times of those texts?'" The prosecutor

complied and asked Patton, "Are those the times of those texts?" Patton answered, "Yes,

sir." Following up, the prosecutor asked, Patton, "When you think back, was it early

morning, a couple of hours after this incident?" Patton replied, "Yes, sir."

       The prosecutor then showed Patton People's exhibit No. 117, which depicted a

portion of the text messages exchanged between Patton and Sissac later that evening.

Patton confirmed that he sent a text to Sissac at 11:03 p.m. that stated, "Nigga, this ain't

cool at all. I can't sleep or nothing. Yo, I didn't even do shit. You need to be a man and

own up, Meech."

                                              13
       Patton testified he sent another text to Sissac two minutes later that stated, "You

ain't thinking about my life, my fam[ily], and this shit hurts like fuck." The prosecutor

asked whether he got any response to that text, and Patton answered, "No."

       The prosecutor then asked Patton whether he sent another text message to Sissac

at 11:13 p.m. that night, and Patton replied, "I did." When asked what he said to Sissac

in the text, Patton replied, "'Do the right thing, please, yo.'" Patton testified that he got a

response from Sissac at 12:00 a.m. that stated, "You have to pray." Patton also testified

that he did not see that response until 9:00 a.m. the next morning. The prosecutor asked

Patton, "How did you respond to that?" Patton answered, "I said, 'No, you pray, Nigga.

That's some coward ass shit. I got nothing else to say.'"

       Later in the trial, Deputy Pearce testified that he downloaded the contents of

Patton's phone, the phone number of which was 564-1296. One of the contacts in

Patton's phone was Meech (Sissac) with a phone number of 619-799-3642. Deputy

Pearce also testified that several phone calls between Patton and Meech were listed in the

incoming and outgoing call log of Patton's phone, and there were text messages to and

from Meech. He further testified that he downloaded the contents of Sissac's phone that

had a phone number of 619-799-3642 and contained a contact for "D" which listed

Patton's phone number.

       At the close of the prosecution's case-in-chief, the court admitted exhibit Nos. 116

and 117 into evidence without objection.




                                               14
       B. Standard of Review

       "[A]n appellate court applies the abuse of discretion standard of review to any

ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22

Cal.4th 690, 717.) We will not disturb the trial court's exercise of discretion except upon

a showing that it "exercised its discretion in an arbitrary, capricious, or patently absurd

manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999)

20 Cal.4th 1, 9-10.)

       "The 'routine application of state evidentiary law does not implicate [a] defendant's

constitutional rights.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1010.) A trial court's

error under state law in the admission or exclusion of evidence following an exercise of

discretion is properly reviewed for prejudice under People v. Watson (1956) 46 Cal.2d

818, 836 (Watson). (People v. McNeal (2009) 46 Cal.4th 1183, 1203 (McNeal).) Under

the Watson harmless error test, the trial court's judgment may be overturned only if "it is

reasonably probable that a result more favorable to the [defendant] would have been

reached in the absence of the error." (Watson, at p. 836.)

       C. Analysis

       We need not and do not reach the merits of Sissac's claim that the court

erroneously admitted evidence of text messages (discussed, ante) that he and Patton

exchanged with each other after the shooting incident because Sissac has not shown and

cannot demonstrate that any such error was prejudicial. Assuming without deciding the

court abused its discretion in admitting that evidence, and applying the applicable Watson

harmless error test (McNeal, supra, 46 Cal.4th at p. 1203), we conclude─in light of the

                                             15
strong evidence of Sissac's guilt apart from the challenged text message evidence─that

Sissac has failed to meet his burden of establishing a reasonable probability he would

have achieved a more favorable result absent the admission of the text message evidence.

       As discussed more fully, ante, a video recording at the El Cajon trolley station

shortly before Sissac, Patton, Glenn, Roy, and a fifth male got into Hamrah's taxicab the

morning Hamrah was shot showed Sissac speaking to the taxicab drivers there. This

evidence corroborated the testimony of Othman, one of the cab drivers at that station,

who testified that a "black young man"9 approached him with a $20 bill and begged him

for a ride at around 3:30 a.m.; that Othman took the money to Hamrah, who was at the

front of the cab line; and that the young Black male and four other Black males got into

Hamrah's taxicab a few minutes later as shown in a video that was played for Othman.

       The prosecution presented evidence that Sissac managed to obtain a $20 fare for

the group to travel to Lemon Grove.10 Glenn's testimony established that he, Sissac,

Patton, Roy, and the other male got into Hamrah's cab. Both Patton and Glenn testified

that Sissac got into the front seat while the other four sat in the back seat.

       The prosecution also presented testimony─apart from the challenged text message

evidence─showing that Sissac made self-incriminating statements. For example, Patton

testified that, after he heard the gunshot, he heard someone say, "Meech [(Sissac)] shot



9     The record shows Sissac is an African-American who was born in mid-1992 and
was 19 years of age at the time of the shooting in late October 2011.

10    Glenn testified Sissac said he wanted to "[d]itch a cab," which meant to get in the
cab and not pay because they had no money.
                                              16
the cab driver." Patton then testified that Glenn yelled at Sissac, "What the fuck did you

do? Why the fuck did you do that?" Patton testified that Sissac looked at Glenn with a

blank look on his face and said the cab driver had laughed or smiled at him. Any

reasonable jury could find that such a response is an implicit admission demonstrating

consciousness of guilt.

       The trial record also shows that before the prosecutor presented to the jury the

contents of exhibits Nos. 116 and 117 depicting various text messages found on Patton's

cell phone, Patton testified from his own recollection that he texted Sissac later in the

morning, after the shooting of Hamrah, and "asked [Sissac] to do the right thing and turn

himself in."

       Glenn's testimony placed Sissac in the front passenger seat of Hamrah's taxicab

prior to the shooting and established that Sissac admitted to Glenn that he was the

shooter. Specifically, Glenn testified that he, Sissac, Patton, Roy, and the fifth male got

into the taxicab.11 Both Patton and Glenn testified that Sissac got into the front seat

while the other four sat in the back seat. Glenn testified that, after he heard the gunshot,

he asked Sissac, "What happened? What the fuck did you just do?" Glenn further

testified that he "jump[ed] in [Sissac's] face" and told him, "You just smoked the cab

driver." According to Glenn's testimony, Sissac told him, "Since I'm the one that did it,

there's no need to take everybody down with me." (Italics added.)



11     Although Glenn did not identify Hamrah as the driver of the taxicab, an
eyewitness─Naseer Yousif, another taxicab driver─testified that he saw five Black
individuals get into Hamrah's cab around 3:30 a.m. on October 30, 2011.
                                             17
       The trial record also shows that Sissac made self-incriminating statements during

Patton's second November 1 pretext phone call to him, which was recorded, transcribed,

and played for the jury. Specifically, Patton told Sissac, "To do some shit like that, like

that's not my Nigga right there." (Italics added.) Sissac responded, "Yeah, it wasn't me.

You know? You gotta, you gotta, what you gotta see is that was the devil . . . ." (Italics

added.) Patton then asked asked Sissac, "[D]id you . . . [¶] . . . feel like the devil was in

you?" Sissac replied, "Yeah. It was, I just─just fuckin' else that would do somethin' like

that. God wouldn't, wouldn't do nothing like that. He wouldn't put that in me. . . .

[¶] . . . [¶] . . . That was the devil." (Italics added.) Patton also told Sissac, "[T]his isn't

[Sissac] that's doin' this. This is . . . somebody else inside of this dude." (Italics added.)

Sissac responded, "Yeah. [¶ . . . [¶] . . . I mean it's sad to say this had to happen but it will

turn me around, you know, so . . . ." (Italics added.) Although Sissac challenges the

admissibility of this evidence, for reasons we shall explain, post, the court did not err in

admitting this evidence.

       Circumstantial forensic evidence also supported the jury's finding that Sissac

fatally shot Hamrah. The prosecution presented evidence establishing that the bullet

recovered from Hamrah's body was consistent with having been fired from a .38-caliber

weapon. Glenn testified he had given a .38-caliber gun to Sissac the day before the

shooting.

       In sum, Sissac has failed to meet his burden of showing that any error by the court

in admitting evidence of the text messages between Patton and Sissac was prejudicial.



                                                18
      II. ADDITIONAL CLAIMED ERRORS RESULTING FROM THE CLAIMED
              ERRONEOUS ADMISSION OF CELL PHONE ACTIVITY

       In a related and somewhat convoluted claim, Sissac asserts that "[t]he prejudicially

erroneous admission of the various foundationless, inherently unreliable purported

records of cell phone activity led to additional prejudicially erroneous errors; namely, the

admission of the evidence that [(1)] Sissac had supposedly 'deleted' the purported text

messages between him[self] and [Patton]," which the prosecution "cite[d] . . . as showing

consciousness of guilt"; and (2) "that Sissac and Roy had phone contacts after the

incident [citations] contrary to Roy's testimony that they did not communicate after the

incident [citations]." In his reply brief, Sissac asserts that "the concern is . . . that the

evidence was introduced to prove [he] 'deleted' text messages to hide his involvement in

the shooting, and that Roy─whose credibility was crucial to the defense since his

testimony refuted the notion of Sissac's guilt─was not a believable witness." This, he

maintains, "is precisely how the prosecution argued this evidence." Sissac also asserts

that "[t]he erroneous admission of these extrapolations and conclusions drawn directly

from the erroneously admitted records of cell phone activity could only serve to

exacerbate the violation of Sissac's fundamental constitutional rights to due process, a fair

trial, to confront and cross-examine adverse witnesses, and to a reliable determination of

guilt." These assertions are unavailing.

       A. Background

       Deputy Sheriff Daniel Pearce, a member of the computer crimes task force,

performed cell phone data extraction using a tool called "Celebrite" on several cell


                                               19
phones involved in this matter. Deputy Pearce testified that on October 31, 2011, he

downloaded the contents of Patton's cell phone, which had a phone number of 564-1296.

Without a defense objection, he testified that one of the contacts in Patton's phone was

Meech (Sissac) with a phone number of 619-799-3642. Several phone calls between

Patton and Meech were listed in the incoming and outgoing call log of Patton's phone.

There also were text messages to and from Meech.

       Deputy Pearce also testified that on November 15, 2011, he downloaded the

contents of Sissac's cell phone which had a phone number of 619-799-3642. Sissac's

phone contained contacts for "Little Ant" (Roy), "D" (Patton), and "Jodi" (Glenn). He

also testified there were several text messages to and from Sissac on Patton's phone, and

these text messages were not on Sissac's phone. The prosecutor then asked Deputy

Pearce, "Based on that, what do you attribute that to?" Deputy Pearce replied: "There's

only two reasons that text messages really wouldn't be on the phone. One is you have

your phone turned off, you didn't use it. In this case, we know it's not true because we

have corresponding text messages on Mr. Patton's phone. The other reason would be that

text messages were deleted off the phone." (Italics added.)

       During his closing argument, the prosecutor argued that Sissac "hid the evidence

when we're talking about the text messages."

       B. Analysis

       We reach the merits of Sissac's claim of prejudicial error notwithstanding the

Attorney General's assertion that Sissac "has forfeited his claim that the phone records



                                            20
were erroneously admitted" because "[d]efense counsel did not object to Deputy Pearce's

testimony regarding the data extraction he conducted from the various cell phones."

       With regard to the merits of his claim, Sissac asserts that, apart from the forfeiture

issue raised by the Attorney General, "[t]he only real issue[] here" is "whether the

erroneous admission of this evidence was prejudicial."

       As we did with respect to Sissac's preceding claim that the court erroneously

admitted evidence of text messages, we shall assume without deciding that the court

abused its discretion in admitting the additional evidence he challenges here and apply

the applicable Watson harmless error test. (McNeal, supra, 46 Cal.4th at p. 1203.) We

conclude─in light of the strong evidence of Sissac's guilt apart from both the challenged

text message evidence and the evidence challenged here─that Sissac has failed to meet

his burden of establishing a reasonable probability he would have achieved a more

favorable result absent the assumed evidentiary error. In claiming in his opening brief

that he suffered prejudice that "served to exacerbate the violation of [his] fundamental

constitutional rights," Sissac largely disregards the plethora of strong evidence of his

guilt, discussed, ante, which we incorporate by reference here.

       In his reply brief, Sissac asserts that "[t]he testimony of [Patton] and Glenn─the

only witnesses who claimed to have seen or heard [him] incriminate himself in the

shooting─was rife with obvious bias and reliability problems." Sissac further asserts that,

"[b]esides this testimony of dubious weight and credibility, the only other potential

evidence [of his guilt]," other than Deputy Pearce's testimony that he (Sissac) deleted the

text messages he and Patton exchanged after the shooting, was the evidence of Patton's

                                             21
pretext call to him. These assertions are unavailing because it is the exclusive province

of the jury to determine the credibility of a witness and the truth or falsity of the facts

upon which a credibility determination depends (People v. Manibusan (2013) 58 Cal.4th

40, 87), and─again, as we shall explain, post─the court properly admitted strong

evidence that Sissac made self-incriminating statements during Patton's second

November 1 pretext phone call to him.

          III. PATTON'S PRETEXT CALL TO SISSAC AFTER THE MURDER

       Sissac next contends the court violated his fundamental constitutional rights to due

process, to a fair trial, to confront and cross-examine adverse witnesses, and to a reliable

determination of guilt by erroneously admitting evidence of the pretext call that Patton

made to him on November 1, 2011, following the killing of Hamrah. This contention is

unavailing.

       A. Background

       Prior to trial, in its trial brief, the prosecution argued that Sissac's statements to

Patton in two pretext phone calls and a jail phone call were admissible as admissions of a

party opponent pursuant to section 1220. During a pretrial hearing, the prosecution

explained that Patton made two pretext phone calls to Sissac, one at 5:45 p.m. on

November 1, 2011, and another at 10:42 p.m. that same night. The prosecution also

sought admission of a jail call on November 2, 2011, between Sissac and his mother.

Defense counsel argued the statements in the pretext call were "not true admissions," but

conceded they were statements made by a party opponent.



                                               22
       The court indicated it would review the transcripts of the phone calls before it

determined whether they were admissible. The court later indicated its tentative ruling

was that the first pretext phone call and the jail phone call were inadmissible, but the

second pretext phone call "has some incriminating language in it and would therefore be

admissible." The prosecutor requested that the court listen to the actual recordings of the

phone calls before making its rulings. When the trial court asked defense counsel

whether he opposed admission of the second pretext phone call, defense counsel

responded, "I'm conceding that the [second pretext phone call] has admissions, Your

Honor, what could be deemed admissions."

       The next day, outside the presence of the jury, the prosecution played the first

pretext phone call and the jail phone call for the court. After argument by both counsel,,

the trial court reiterated its earlier ruling and excluded the first pretext phone call and the

jail call, stating that those conversations "at best, are vague, speculative, they're

ambiguous. There's no specific adoptive admission and even if there is, it's, at most,

confusing to the jury. Those conversations are excluded." The court also reaffirmed its

earlier ruling allowing the prosecution to present evidence of the second pretext phone

call that Patton made to Sissac.

       1. Admission of Sissac's statements during the second pretext phone call

       At trial, the recording of Patton's second pretext phone to Sissac, which started at

10:42 p.m. November 1, 2011, was played for the jury. Copies of the transcript of that

phone call were handed out to the jurors. During that phone call, Patton told Sissac,

"[I]t's . . . just fuckin' a stressful situation that I'm in right now," and Sissac replied that it

                                                23
"ain't your situation to stress" and that "you just got to let it go." Patton asked, "[W]hat

does God say to you, you know, like, what is this doin' for you?" Sissac eventually

replied, "You know all sin is forgiven." Patton indicated that he might need to talk to

Sissac's pastor, and stated that "I need to fuckin' get an appointment with his ass" because

"he got you all kinds of calm." Responding that he had talked to his pastor, Sissac

offered to take Patton to see him.

       Sissac also told Patton during the pretext call that "everything happens for a

reason. You know, this is just an eye opener . . . ." Shortly thereafter Patton said, "I don't

want to look at you in a different light like that," and "that night, . . . I just didn't see

Meech."12 Patton added, "To do some shit like that, like that's not my Nigga right there."

(Italics added.) Sissac responded, "Yeah, it wasn't me. You know? You gotta, you gotta,

what you gotta see is that was the devil . . . ." (Italics added.) Patton then asked asked

Sissac, "[D]id you . . . feel like the devil was in you?" Sissac replied, "Yeah. It was, I

just─just fuckin' else that would do somethin' like that. God wouldn't, wouldn't do

nothing like that. He wouldn't put that in me. [¶] . . . [¶] . . . That was the devil." (Italics

added.) Patton also told Sissac, "[T]his isn't [Sissac] that's doin' this. This

is . . . somebody else inside of this dude." (Italics added.) Sissac responded, "Yeah. [¶ . .

. [¶] . . . I mean it's sad to say this had to happen but it will turn me around, you know,

so . . . ." (Italics added.)




12     At trial Patton testified he knew Sissac as Meech.
                                                24
       Later during that recorded phone conversation, Patton asked Sissac whether he got

"any money out of it." Sissac responded, "No, I didn't." Patton told Sissac that the "devil

makes you do crazy things," and Sissac replied, "He does, and that's what you need to

know." Patton said, "I don't never want to hear no shit like that. I don't know who the

fuck you was that night dog but don't ever be that person again. You feel me? That's

not you . . . ." (Italics added.) Sissac responded, "Yeah." (Italics added.) The phone call

ended soon thereafter.

       2. Jury instructions

       The court instructed the jury regarding adoptive admissions under CALCRlM No.

357:

          "If you conclude that someone made a statement outside of court
          that accused the defendant of the crime or tended to connect the
          defendant with the commission of the crime and the defendant did
          not deny it, you must decide whether each of the following is true:
          [¶] 1. The statement was made to the defendant or made in his
          presence; [¶] 2. The defendant heard and understood the statement;
          [¶] 3. The defendant would, under all the circumstances, naturally
          have denied the statement if he thought it was not true; [¶] AND [¶]
          4. The defendant could have denied it but did not. [¶] If you decide
          that all of these requirements have been met, you may conclude that
          the defendant admitted the statement was true. [¶] If you decide that
          any of these requirements has not been met, you must not consider
          either the statement or the defendant's response for any purpose."

       The court also instructed under CALCRlM No. 358 regarding evidence of a

defendant's statements:

          "You have heard evidence that the defendant made oral or written
          statements before the trial. You must decide whether the defendant
          made any of these statements, in whole or in part. If you decide that
          the defendant made such statements, consider the statements, along
          with all the other evidence in reaching your verdict. It is up to you

                                            25
          to decide how much importance to give to the statements. [¶]
          consider with caution any statement made by the defendant tending
          to show his guilt unless the statement was written or otherwise
          recorded."

       B. Adoptive Admission Exception to the Hearsay Rule (§ 1221)

       Section 1221 codifies the adoptive admission exception to the hearsay rule and

provides: "Evidence of a statement offered against a party is not made inadmissible by

the hearsay rule if the statement is one of which the party, with knowledge of the content

thereof, has by words or other conduct manifested his adoption or his belief in its truth."

       The California Supreme Court has explained that, "[u]nder [section 1221], '[i]f a

person is accused of having committed a crime, under circumstances which fairly afford

him an opportunity to hear, understand, and to reply, and which do not lend themselves to

an inference that he was relying on the right of silence guaranteed by the Fifth

Amendment to the United States Constitution, and he fails to speak, or he makes an

evasive or equivocal reply, both the accusatory statement and the fact of silence or

equivocation may be offered as an implied or adoptive admission of guilt.' [Citations.]

'For the adoptive admission exception to apply, . . . a direct accusation in so many words

is not essential.' [Citation.] 'When a person makes a statement in the presence of a party

to an action under circumstances that would normally call for a response if the statement

were untrue, the statement is admissible for the limited purpose of showing the party's

reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a

tacit admission of the statements made in his presence.'" (People v. Riel (2000) 22

Cal.4th 1153, 1189.)


                                             26
       C. Analysis

       We reach the merits of Sissac's claim of prejudicial error notwithstanding the

Attorney General's assertion that Sissac "has forfeited the instant claim."

       Sissac contends his statements to Patton during the recorded pretext phone call

were not adoptive admissions of guilt within the meaning of the adoptive admission

exception to the hearsay rule because "they did not express any sort of adoptive

admission of guilt and, to the extent one might be able to glean such an inference from

them, the vagueness and ambiguity of the statements ultimately rendered them too

confusing to be admitted for this purpose." In support of this contention, he asserts that

the statements he and Patton made during the call "vaguely refer to 'this' or 'that' in

describing the topic of [his] conversation[] [with Patton], leaving it simply unclear as to

just what [he and Patton] were discussing."

       Sissac's claims that his and Patton's references to "this" and "that" in describing

the topic of their conversation rendered his statements "too confusing" to be admitted as

adoptive admissions and that his statements to Patton "did not express any sort of

adoptive admission of guilt," are unavailing. The evidence shows that Hamrah was shot

during night time in the early morning hours of October 30, 2011, and Patton made his

pretext call to Sissac at 10:42 p.m. at the direction of the police two nights later on

November 1. During their phone conversation, Patton, in a statement accusing Sissac

(whom he knew as Meech) of wrongdoing at night, said, "[T]hat night, I just didn't see

Meech," and added, "To do some shit like that, like that's not, that's not my Nigga right

there." Any rational jury could infer from Patton's accusatory statement, in light other

                                              27
properly admitted evidence (discussed, ante) showing that Sissac shot Hamrah, that

Patton was accusing Sissac of shooting Hamrah during the night of October 29-30, and

that Sissac would have denied the accusation if it were not true. A rational jury also

could infer that Sissac's response to Patton's accusation was an implied or adoptive

admission of guilt. Sissac's responded to the accusation by telling Patton, "Yeah, it

wasn't me. You know? You gotta, you gotta, what you gotta see is that was the

devil . . . ." A rational jury could infer from this response that Sissac was expressing

consciousness of guilt by impliedly admitting he committed the act, but "the devil" made

him do it. We conclude that the evidence of the statements made by Sissac and Patton

during the pretext call was relevant to the central factual issue of whether Sissac shot

Hamrah, and that the court properly found that evidence was admissible under the

adoptive admission exception to the hearsay rule codified in section 1221.

     IV. CLAIM THAT THE COURT ABUSED ITS DISCRETION BY ADMITTING
              IMPROPER LAY OPINIONS OF PATTON AND GLENN

       Sissac also claims the court prejudicially abused its discretion and violated his

federal constitutional right to a jury trial by erroneously admitting improper lay opinion

testimony by both Patton and Glenn on "the central factual and legal issues that the jury

was to decide." Specifically, he asserts the court prejudicially erred (1) by allowing

Patton to testify that the victim (Hamrah) was "innocent" and that what Sissac had done

was a "sin," it was "wrong," and it was "murder"; and (2) by permitting Glenn to testify

that Sissac "murder[ed]" the victim. Sissac also contends his trial counsel rendered




                                             28
prejudicial ineffective assistance of counsel by failing to object to this testimony as

improper opinions. Sissac's contentions are unavailing.

       Sissac forfeited his claim of prejudicial evidentiary error by failing to object at

trial to the foregoing testimony on the ground it constituted inadmissible lay opinion.

section 353 precludes a party from complaining on appeal that evidence was inadmissible

on a certain ground unless he or she made a timely and specific objection on that ground

below. (§ 353, subd. (a).)13 Here, the record shows that defense counsel did not object

to any of the foregoing testimony on the ground that it constituted inadmissible lay

opinion.

       We reject Sissac's claim of ineffective assistance of counsel. To prevail on a claim

of ineffective assistance of counsel, a defendant must show (1) that his counsel's

performance was below an objective standard of reasonableness under prevailing

professional norms, and, of particular importance here, (2) that the deficient performance

prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688;

People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To show prejudice, the defendant

must show a reasonable probability he would have received a more favorable result had

his counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at

pp. 217-218.) We conclude that, in light of the strong evidence of Sissac's guilt



13     Section 353, subdivision (a) provides: "A verdict or finding shall not be set aside,
nor shall the judgment or decision based thereon be reversed, by reason of the erroneous
admission of evidence unless: [¶] (a) There appears of record an objection to or a motion
to exclude or to strike the evidence that was timely made and so stated as to make clear
the specific ground of the objection or motion."
                                             29
(discussed, ante) that does not include the lay opinion testimony challenged here, Sissac

has failed to meet his burden of establishing a reasonable probability he would have

achieved a more favorable result but for his counsel's failure to object to Patton's and

Glenn's lay opinion testimony. We note that Sissac, in arguing he was prejudiced by his

trial counsel's failure to properly object to this testimony, disregards the plethora of

strong evidence of his guilt, which we incorporate by reference here.

                           V. CLAIM OF CUMULATIVE ERROR

         Last, Sissac contends the cumulative effect of all of the foregoing claimed

evidentiary errors was prejudicial and warrants reversal of the judgment. We reject this

contention.

         "[A] series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error." (People

v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is "entitled to a fair trial but

not a perfect one." (Ibid.)

         Here, we have concluded that all of Sissac's claims of evidentiary error are

unavailing because any errors that occurred were harmless, whether considered

individually or collectively. Accordingly, we reject his claim of prejudicial cumulative

error.




                                              30
                                 DISPOSITION

     The judgment is affirmed.


                                               NARES, Acting P. J.

WE CONCUR:


HALLER, J.


McINTYRE, J.




                                     31
