Filed 9/29/14 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                                2d Crim. No. B252617
                                                                        (Super. Ct. No. TA125812-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

AHMAD PERRY,

     Defendant and Appellant.


                   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.
              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.



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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.
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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.
                                               4
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


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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


                                              6
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.




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                               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.




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