Filed 3/12/13 P. v. Toy 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               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. B230492
                                                                             (Super. Ct. No. BA363478)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.                                                                      ORDER MODIFYING OPINION
                                                                         AND DENYING REHEARING
ANTONIO TOY et al.,                                                       [CHANGE IN JUDGMENT]

     Defendants and Appellants.




THE COURT:
                   Following the issuance of our opinion in this matter on February 11,
2013, the People filed a petition for rehearing. We deny the petition, but order that
the opinion be modified as follows:
                   1. On page 10, second full paragraph, first sentence, replace "life
without the possibility of parole" with "life with the possibility of parole."
                   2. On page 10, last paragraph starting with "Both," retain the first
sentence, but substitute the following for remainder of the paragraph:
         Because a life sentence has a default minimum term of seven years
         (§ 3046, subd. (a)(1)), the doubled sentence for the premeditated
         murder count is a sentence of life with a minimum of fourteen years.
      (People v. Jefferson (1999) 21 Cal.4th 86, 99-100.) Thus, the
      appropriate sentence for this count (count 1) is life imprisonment with
      a minimum term of 14 years followed by 25 years to life for the
      enhancement. The sentences on the other counts remain as orally
      pronounced.
             3. On page 11, under Disposition, substitute the second sentence with
the following:
      We modify Toy's sentence on count 1 (and concomitantly amend the
      Abstract of Judgment) to reflect a sentence of life imprisonment with
      a minimum term of 14 years followed by a consecutive 25-year-to life
      sentence for the discharge-of-a-firearm enhancement.


             This modification changes the judgment.
             Respondent's petition for rehearing is denied.




                                         2
                                John S. Fisher, Judge

                      Superior Court County of Los Angeles
                      ______________________________


             Leslie Conrad, under appointment by the Court of Appeal, for
Defendant and Appellant Antonio Toy.
             Alan Stern, under appointment by the Court of Appeal, for Defendant
and Appellant Marvin J. Wren.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan
Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy
Attorney General, for Plaintiff and Respondent.




                                         2
Filed 2/11/13 P. v. Toy CA2/6 (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,                                                                  2d Crim. No. B230492
                                                                           (Super. Ct. No. BA363478)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

ANTONIO TOY et al.,

     Defendants and Appellants.



                   Marvin Wren (Wren) and Antonio Toy (Toy) appeal their convictions for
attempted murder (Penal Code, §§ 187/664)1 and burglary (§ 459). Wren also appeals his
conviction for dissuading a witness (§ 136, subd. (a)(2)).2 They challenge the admission
of an America Online (AOL) Instant Messenger (AIM) status update and the
effectiveness of their attorneys. Wren also questions the sufficiency of the evidence
underlying his attempted murder and burglary convictions. None of defendants'
arguments has merit. We affirm Wren's judgment, and affirm and modify Toy's
judgment.3


                   1
                       All statutory references are to the Penal Code unless otherwise specified.
                   2
              Toy does not appeal his conviction for being a felon in possession of a
firearm. (Former § 12020, subd. (a)(1), repealed by Stats. 2010, ch. 711, § 4.)
                   3
                Concurrently with the filing of his opinion, we deny by separate order
Toy's Petition for Writ of Habeas Corpus in case 2d Civil No. B243745.
                          FACTS AND PROCEDURAL HISTORY
                                     I. Offense Conduct
              We recite the facts in the light most favorable to the judgments.
              In 2009, Wren and Toy (collectively, Defendants) were friends with one
another and members of the East Side 87 Kitchen Crips gang. Defendants were also
friends with Andrea Bryant, and are cousins to three of Bryant's children.
              In April 2009, Wren made it clear he disliked Bryant's boyfriend, Justin
Matthews (Matthews). Earlier that month, Matthews had not helped Wren when Wren
got into a fist fight while defending Bryant's good name. Wren was still angry with
Matthews in early October 2009, when he told Bryant, "[I]f I catch [Matthews] outside
your house, I'll bust his head."
              On October 11, 2009, Toy shot Matthews. Earlier that morning, Toy had
stopped by Bryant's apartment to visit and had looked around the apartment as he chatted
with Bryant. After Toy left, Bryant walked to the apartment upstairs to see her cousin,
Kendra Evans (Evans). Wren was there, and immediately stopped talking once Bryant
entered the apartment. Wren appeared to be angry with Bryant. When Bryant returned to
her apartment, Wren followed her without saying a word, and sat down on the flowerbed
three feet in front of the door to her apartment.
              Wren pulled out his cell phone and appeared to be typing something.
Moments later, Bryant glanced at her cell phone. She and Wren regularly used their
phones to converse using AOL's Instant Messenger program. Bryant noticed that the
status message for Wren's account had changed. It had read "Available" before Bryant
went to Evans's apartment, but had since been changed to read: "LETS C DIS KLWN
CUM OUT DAT HSE, LOL, LET ME SHOW DAT ASS HOW SERIOUS IAM BITCH.
DIIIS KITCHEN THIRSTY BITCHES."
              Toy and Wren watched Bryant leave the apartment complex. Minutes later,
someone started knocking at the front door and all the windows of Bryant's apartment.
Almost immediately after the knocking stopped, someone slid open the window in the
master bedroom where Matthews was dozing. Matthews jumped up off the bed just in


                                              2
time to see a gun and torso in a blue jacket emerge from behind the blinds. Toy had been
wearing a blue jacket earlier that morning. Matthews saw Toy's face and they asked each
other "What's up?" Toy then shot Matthews in the leg and shot at him a second time but
missed. Bryant never saw Wren or Toy again.
              After Wren was arrested, he called Bryant five or six times. He never
denied his involvement and repeatedly apologized. He also offered her $30,000 if she
and Matthews would change their stories. At Wren's behest, Wren's sister also called
Bryant. She repeated Wren's bribe and also threatened Bryant with violence. One of
Wren's fellow gang members further threatened Bryant, and beat up the father of her
children on the day Bryant testified at Wren's preliminary hearing.
                                       II. Prosecution
              Defendants were eventually charged with, and convicted of, the burglary of
Bryant's apartment, the attempted murder of Matthews, and various firearms
enhancements. Wren was also convicted of attempting to dissuade Bryant's testimony.4
The court imposed a sentence of life plus three years for Wren, and a sentence of life plus
life plus twenty-five years to life for Toy.
                                        DISCUSSION
                            I. Admission of AIM Status Update
              Defendants argue that the trial court erred in admitting evidence that Wren
updated the status message of his AIM account.5 The trial court admitted this evidence
after an evidentiary hearing at which Bryant explained how AIM works. She testified
that a user creates a username and password and gives that username to others who then


              4
               The jury acquitted the Defendants of the attempted murder and assault of
Bryant's five-year-old daughter, whose presence in the bedroom when Toy shot
Matthews was disputed. The jury also found the gang allegations not true.
              5
                The jury heard Bryant's testimony on this point and saw a photograph
Bryant took of her cell phone displaying the update. On appeal, Defendants do not
dispute that the photograph accurately depicted what was on the phone. Instead, they
focus on whether Wren sent the update.


                                               3
add the user as a "buddy." The user can then either send person-to-person instant
messages or can broadcast a "status" update to all "buddies."
               Defendants present two challenges to this evidence. First, they assert that
the status update was not properly authenticated. In their view, Bryant could not
authenticate the update because she was not physically present when Wren allegedly
typed the update, because she did not work for AOL, and because someone pretending to
be Wren could have updated his status. Second, Defendants contend that the probative
value of the update was substantially outweighed by the dangers of unfair prejudice and
misleading the jury. In particular, they claim the update was of marginal relevance
because it did not expressly refer to the April incident, any murder attempt, or to
Matthews. We review the trial court's authentication and relevance rulings for an abuse
of discretion. (People v. Smith (2009) 179 Cal.App.4th 986, 1001 (Smith); People v.
Valdez (2012) 55 Cal.4th 82, 133.)
               A. Authentication
               To authenticate a "writing" (Evid. Code, §§ 1400, 250), its proponent must
present enough evidence "'. . . to permit the trier of fact to find that it is authentic. . . .'"
(People v. Valdez (2011) 201 Cal.App.4th 1429, 1434-1435 (Valdez).) Authentication is
a flexible concept, and there are many ways to establish that a writing is authentic. (Evid.
Code, § 1410.)
               The People met their threshold burden in this case. Bryant testified that the
update was posted from the same AIM account she had used to communicate with Wren
for nearly two years. (United States v. Owens (N.D. Mass. 2010) 2010 U.S. Dist. LEXIS
37134 at pp. 15-16 [extended use of online channel of communication may authenticate]
(Owens).) Wren often used his phone to access AIM, and both Bryant and Matthews saw
Wren typing on his phone during the window of time that Wren's status was updated.
(Evid. Code, § 1413 ["A writing may be authenticated by anyone who saw the writing
made or executed . . ."].) The update also included content tied to Wren. The update
referred to the author as "[This] Kitchen" and Wren belonged to the Kitchen Crips gang.
Moreover, the author dared "[this clown]" to leave the "[house]," just as Wren had


                                                 4
warned Bryant that Matthews should not do. Moreover, Wren's account was password
protected, making it more difficult for someone to hack his account. (Valdez, supra, 201
Cal.App.4th at p. 1436.) The sum of this circumstantial evidence is sufficient to permit a
jury to find that Wren updated the status of his own AIM account. (Smith, supra, 179
Cal.App.4th at p. 1001 ["Circumstantial evidence [is a] valid means of authentication"].)
              We are not persuaded by Defendants' arguments to the contrary. They cite
no precedent in support of their contention that authentication requires testimony by an
AOL employee or by someone looking over Wren's shoulder. Nor will we adopt such
rigid rules because they would be at odds with our common-sense approach to
authentication.
              Defendants further rely on People v. Beckley (2010) 185 Cal.App.4th 509,
for the proposition that the People did not meet its burden because "'. . . hackers can
adulterate the content of any website from any location at any time.'" (Id. at pp. 515-
516.) As an initial matter, Beckley is distinguishable on its facts. In Beckley, the People
sought to authenticate a photograph found on a website, but presented no testimony that
the photograph accurately depicted the event photographed and no expert testimony that
the photograph was genuine and not altered digitally. (Id. at pp. 514-515.) The primary
issue here is not a photograph, but whether Wren was the author of the status update.
              We decline to read Beckley's language as a broader condemnation of
evidence harvested from the online world. Such a reading would be inconsistent with the
emerging body of law upholding the admission of instant messages even when the author
cannot be known with certainty. (See Owens, supra, 2010 U.S. Dist. LEXIS 37134 at
pp. 15-16; United States v. Nobrega (D. Me. 2011) 2011 U.S. Dist. LEXIS 55271 at pp.
18-19.) Such a reading would also reject a fundamental principal underlying
authentication: "'. . . The fact that conflicting inferences can be drawn regarding
authenticity goes to the document's weight as evidence, not its admissibility. . . .
[Citations.]'" (Valdez, supra, 201 Cal.App.4th at p. 1435.)




                                              5
              Accordingly, the trial court did not abuse its discretion in concluding that
there was sufficient evidence to sustain the admission of the status update.6
              B. Evidence Code section 352 balancing
              Defendants further assert that the update should have been excluded as
substantially more prejudicial than probative under Evidence Code section 352. The
court did not abuse its discretion. The update was quite probative of Wren's intent and
his motive. Nor was its value substantially undercut by Wren's decision not to be overly
detailed in laying out his exact plan for how he was going to "show [that] ass how
serious" he was. Although certainly prejudicial to Defendants, the update was not
unfairly prejudicial. For these reasons, the trial court's balancing of these considerations
was not erroneous. This conclusion requires us to reject Defendants' further contention
that the misapplication of Evidence Code section 352 violated due process. (People v.
Partida (2005) 37 Cal.4th 428, 435.)
                           II. Ineffective Assistance of Counsel
              Defendants next raise several claims regarding the effectiveness of their
counsel. To prevail, Defendants must establish that (1) their attorneys provided deficient
performance; and (2) but for counsels' errors, there is a reasonable probability the result
of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S.
668, 687, 694.) We review counsel's performance deferentially. (In re Jones (1996) 13
Cal.4th 552, 561.)
              A. Question eliciting double hearsay regarding Wren's solicitation of
others to shoot Matthews
              During her cross examination, Bryant testified that the conversation she
interrupted between Wren and her cousin Evans might have dealt with whether Matthews
was in Bryant's apartment that morning. Toy's counsel then asked, "So you would have

              6
                Because it is sufficiently authenticated as originating from Wren,
the update is admissible under hearsay exception for party admissions. (See Evid. Code §
1220; accord United States v. Newton (1st Cir. 1989) 891 F.2d 944, 947.)



                                              6
reason to believe [Evans] would be in leave [sic] with [Wren] to get [Matthews]?"
Bryant responded that Evans "might have told [Wren] something." Bryant then
recounted how Evans's boyfriend had told Bryant that Wren "tried to get [the boyfriend]
to do the hit, but he wouldn't do it so that's why [Wren] sent [Toy]." Neither counsel
objected to the answer. Defendants now claim Toy's counsel was ineffective in asking
that question and both counsel were ineffective for not objecting to the answer.
               We start with the question. Because the question itself was not one
"a reasonably competent counsel would have known would elicit an incriminating
response" (People v. Upsher (2007) 155 Cal.App.4th 1311, 1330), Toy's counsel was not
ineffective for asking it.
               In examining the effectiveness of counsel for not objecting to the answer,
we first examine the threshold issue whether the answer is objectionable. We conclude
that it was. Bryant's answer entailed two potential layers of hearsay: (1) what Wren
discussed with Evans's boyfriend; and (2) what the boyfriend told Bryant. The first layer
is admissible as a party admission (see Evid. Code § 1220), but no exception applies to
the second layer.
               This requires us to ascertain whether the absence of an objection
constituted deficient performance. It did not. The failure to make a valid objection,
without more, "rarely rises to a level implicating one's constitutional right to effective
legal counsel. [Citation.]" (People v. Boyette (2002) 29 Cal.4th 381, 433.) That is
because "'. . . [t]he choice of when to object is inherently a matter of trial tactics . . . .
[Citations.]'" (People v. Farnam (2001) 28 Cal.4th 104, 202.) Courts will not infer
ineffectiveness "unless there could be no conceivable reason" for counsel's tactical
decision not to object. (People v. Weaver (2001) 26 Cal.4th 876, 926.) We can infer
several reasons here. Objecting might have highlighted the damaging evidence. (People
v. Stewart (2004) 33 Cal.4th 425, 509.) It also might have prompted the People to call as
a witness Evans's boyfriend who, if he denied the statements, could ostensibly be
impeached with them. (People v. Lucero (2000) 23 Cal.4th 692, 715-716; People v.
Green (1971) 3 Cal.3d 981, 988-989.) The cases Defendants cite are unhelpful because


                                                 7
they do not discuss, or even acknowledge, the issue of tactics. (See People v. Sundlee
(1977) 70 Cal.App.3d 477, 482-483; People v. Valencia (2006) 146 Cal.App.4th 92, 103-
104.)
              Alternatively, we also conclude that the admission of this evidence was not
prejudicial. Bryant's statement was never mentioned again during the trial. Additionally,
this evidence did not negate the otherwise substantial evidence of guilt as to each
defendant. Toy was positively identified as the shooter. Wren's prior threats, his status
update, his conduct in following and watching Bryant, his post-shooting disappearance,
and his post-arrest attempted bribes collectively establish his guilt irrespective of the
statement of Evans's boyfriend.
              B. Question eliciting prior, dismissed charges against Defendants
              Toy's counsel also asked the People's gang expert how he knew Toy was a
gang member. The expert responded that Wren had named Toy as a gang member when
Wren was being interrogated for a shooting in 2006. Counsel went on to clarify that the
2006 charges against Wren and Toy were ultimately dropped. Defendants now argue that
this question, and counsel's failure to make a valid objection to the answer, constitutes
ineffectiveness. Toy further objects on the ground that the answer elicited evidence of
his gang involvement.
              We need not decide the question of ineffectiveness because this exchange
was not prejudicial to either defendant. The impact of expert's mention of the 2006 case
was largely ameliorated by the evidence that the case was dismissed. Given the evidence
of guilt detailed above, this brief exchange does not undermine our confidence in the
jury's verdict. Nor was the mention of Toy's gang affiliation unduly prejudicial because it
was cumulative of other evidence of Toy's gang membership.
              C. Question eliciting Toy's offer to bribe Bryant
              Toy lastly contends that his counsel was constitutionally ineffective for not
objecting when Bryant testified, during her direct examination, that Wren's sister had said
that Toy would contribute to the bribe money. This statement is not objectionable. It
involves two layers of hearsay: (1) what Toy said to Wren's sister; and (2) what Wren's


                                              8
sister said to Bryant. However, both fall into exceptions. The first statement is
admissible as a party admission. (Evid. Code § 1220.) The second is the statement of a
co-conspirator (Wren's sister) (id., § 1223), and the conspiracy is independently
established by Wren's further acts in attempting to bribe Bryant (People v. Cowan (2010)
50 Cal.4th 401, 482; People v. Hinton (2006) 37 Cal.4th 839, 895). Bryant's answer was
also not prejudicial because Toy was identified as the shooter and never charged with
dissuading a witness.
                              III. Insufficiency of the Evidence
                Wren argues that the evidence was insufficient to support a guilty verdict
for aiding and abetting Toy's burglary and attempted murder. In evaluating this claim,
we examine only "'. . . whether there is substantial evidence, i.e., evidence from which a
reasonable trier of fact could conclude that the prosecution sustained its burden of proof
beyond a reasonable doubt. . . .'" (People v. Assad (2010) 189 Cal.App.4th 187, 194.)
We review the evidence in the light most favorable to the verdict and assess solely
whether the supporting evidence is "'. . . reasonable, inherently credible, and of solid
value . . . ." (Ibid.)
                To prove Wren guilty under an aiding and abetting theory, the People were
required to prove that (1) Toy committed burglary and attempted murder; (2) Wren
assisted Toy; and (3) as Wren did so, he knew of Toy's criminal purpose and had the
intent of encouraging or facilitating Toy's crimes. (People v. McCoy (2001) 25 Cal.4th
1111, 1118; People v. Perez (2005) 35 Cal.4th 1219, 1225.)
                Viewed in the light most favorable to the verdict, the jury had substantial
evidence of each element. Matthews positively identified Toy as the person who entered
Bryant's apartment and shot him. The evidence further showed that Wren had a
longstanding grudge against Matthews and had, in fact, threatened him in the past. On
the day of the shooting, Wren's friend Toy "cased" Bryant's apartment; Wren silently
followed Bryant and parked himself in front of her door; Wren updated his status with a
message indicating an intent to harm Matthews; Wren and Toy watched Bryant leave the
apartment complex; Toy entered Bryant's apartment minutes later and shot Matthews;


                                               9
Wren disappeared from the complex and never again contacted his good friend Bryant;
and Wren then tried to bribe Bryant and Matthews to change their stories without
professing innocence and while confessing apology. This is sufficient for a jury to find
beyond a reasonable doubt that Toy committed burglary and attempted murder, and that
Wren knew what Toy was doing, also intended to kill Matthews, and assisted Toy by
acting as a "look out."
              Wren nevertheless argues that this evidence is insufficient for three reasons.
First, he points to several inconsistencies among and between Bryant's and Matthews's
various statements. However, it is well settled that "[r]esolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. . . ." (People
v. Young (2005) 34 Cal.4th 1149, 1181.) Second, Wren presents several reasons why his
involvement in this shooting makes no sense: Why would he wait until October to hurt
Matthews (rather than acting sooner)? Why shoot him (rather than have a fist fight)?
Why endanger Bryant's children (rather than shoot Matthews elsewhere)? These are
arguments for a jury, and do not undermine the evidence that was presented. Lastly, he
argues that his bribes do not unequivocally equate to a consciousness of guilt. This is
also an attempt to re-argue the significance of the evidence—not its sufficiency.
                                     IV. Toy's Sentence
              At the sentencing hearing, the trial court imposed the mandatory sentence
of life without the possibility of parole on the attempted premeditated murder count (§
664, subd. (a)); the court doubled that sentence by imposing a second life term, and then
imposed a consecutive term of 25 years to life for the enhancement for personal discharge
of a firearm (§ 12022.53, subd. (d)). The Abstract of Judgment inconsistently reflects a
sentence on this count of 25 years to life.
              Both the orally pronounced sentence and the abstract are incorrect, and
result in an unauthorized sentence that we will correct on appeal. (People v. Bradley
(1998) 64 Cal.App.4th 386, 391.) Under the statutory language of section 667,
subdivision (e)(1), a sentence of life without possibility of parole is not doubled under the
Three Strikes Law. (People v. Smithson (2000) 79 Cal.App.4th 486, 503; but see People


                                              10
v. Hardy (1999) 73 Cal.App.4th 1429, 1433-1434.) Thus, the appropriate sentence on
Toy's attempted murder count (count 1) is life without the possibility of parole followed
by 25 years to life for the enhancement. The sentences on the other counts remain as
orally pronounced.
                                      DISPOSITION
              The judgment in Wren's case is affirmed. We modify Toy's sentence on
count 1 (and concomitantly amend the Abstract of Judgment) to reflect a sentence of life
without the possibility of parole followed by a consecutive 25-year-to life sentence for
the discharge-of-a-firearm enhancement. The Superior Court Clerk shall prepare an
amended abstract of judgment incorporating these changes and forward a certified copy
to the Department of Corrections and Rehabilitation. As so modified, the judgment in
Toy's case is affirmed.
              NOT TO BE PUBLISHED.




                                          HOFFSTADT, J.*


We concur:



              GILBERT, P. J.



              PERREN, J.




              * Assigned by the Chairperson of the Judicial Council.

                                            11
                                John S. Fisher, Judge

                      Superior Court County of Los Angeles
                      ______________________________


             Leslie Conrad, under appointment by the Court of Appeal, for
Defendant and Appellant Antonio Toy.
             Alan Stern, under appointment by the Court of Appeal, for Defendant
and Appellant Marvin J. Wren.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan
Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy
Attorney General, for Plaintiff and Respondent.
