PEOPLE v. COON (2009)

A jury convicted James Dale Coon of transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a);  count 1), possessing methamphetamine for sale (Health & Saf.Code, § 11378;  count 2), receiving a stolen vehicle (Pen.Code, § 496d;  count 6), being a felon in possession of a firearm (Pen.Code, § 12021, subd. (a);  count 9), being a felon in possession of ammunition (Pen.Code, § 12316, subd. (b)(1);  count 10), and possessing a vehicle component with a defaced or destroyed identification number (Veh.Code, § 10751, subd. (a);  count 11).¹  In a separate proceeding, the trial court found true allegations Coon committed counts 1, 2, 6, 9, and 10 while out on bail.  (Pen.Code, § 12022.1, subd. (b).)  The trial court sentenced Coon to a term of 3 years 4 months in prison.

Coon appeals, arguing the trial court prejudicially erred by admitting evidence of his uncharged possession of methamphetamine in the prosecution's rebuttal case.   Coon also argues the trial court prejudicially erred in admitting faxed copies of certified court records to establish he was on bail when he committed the crimes charged in counts 1, 2, 6, 9, and 10.   We affirm the judgment.

I

Coon is a convicted felon whose home was searched by officers from the Regional Auto Theft Task Force in March 2006 and May 2006.

March 2006 Search

During the first search, police found a stolen 1998 Yamaha quad beneath a hydraulic lift in Coon's backyard.   He told police he bought the quad for $400;  however, he was unable to provide any other details about the purchase.

In addition, police found a motorcycle in Coon's garage.   The identification number on the motorcycle's transmission had recently been obliterated.   He told La Mesa Police Officer Andrew Golembiewski he had bought the transmission for $150.   He mentioned the obliterated transmission number to the seller.   The seller told him not to worry about it and to put his own number on the transmission.

Police also found hundreds of rounds of ammunition in Coon's garage as well as a loaded Smith & Wesson .357 Magnum in a leather pouch hidden in a hole in the garage ceiling.   Although there were no fingerprints on the gun, the words “Coon” and “Jim” were scratched on the gun's handle.   Coon told Officer Golembiewski he found the gun in a toolbox, thought it was a pellet gun, and hid it in the ceiling.   Regarding the ammunition, Coon told Golembiewski he and his father, who has been dead more than 20 years, reloaded (meaning refilled) ammunition.

May 2006 Search

During the second search, police found more ammunition in Coon's garage and a gun clip with .357 Magnum rounds in his bedroom.   As the search was taking place, he pulled into the driveway of the residence in his mother's sedan.   Oceanside Police Sergeant Matthew Cole looked through the front passenger side window and saw Coon holding a blue pouch in his right hand.   After Sergeant Cole ordered him to show his hands and get out of the car, Coon tossed the pouch to the driver's side floorboard.   Sergeant Cole retrieved the pouch, which contained 7.01 grams of methamphetamine.   The pouch also contained a scale, nine empty plastic baggies, and $525 in cash.²  In addition, the police found a bag containing numerous clean glass tubes in the trunk of the car.   Coon denied knowledge of the pouch and told Officer Golembiewski he had been reaching for a drill in the back of the car.   El Cajon Police Officer Paul Winslow, testifying as an expert in drug dealing, stated, in his opinion, the amount of drugs, coupled with the scale, the baggies, the glass tubes, and the cash, suggested the methamphetamine was intended for sale, rather than for personal use.

II

A**

B

To prove the allegation Coon was on bail at the time he committed the crimes charged in counts 1, 2, 6, 9, and 10, the prosecutor presented and the trial court admitted into evidence copies of two minute orders and a 28-page case print from People v. Coon, Superior Court Riverside County, 2005, No. SWF011097 (Riverside County case).   The documents show Coon was out on bail in the Riverside County case when the acts underlying counts 1, 2, 6, 9, and 10 occurred.

The Riverside County Superior Court's seal is stamped on the documents next to a certificate stating, “Each document to which this certificate is attached is certified to be a full, true and correct copy of the original on file and of record in my office.”   The certificate is dated and signed by a deputy court clerk.   Above the certificate is a notice stating, “This must be in red to be a ‘CERTIFIED COPY.’ ”   Below the certificate is a similar notice.

Printed across the top of the documents is a transmit terminal identification header showing the documents were faxed to the prosecutor from the Riverside County Superior Court Clerk's Office.   Because the documents were faxed, the documents were not original certified copies of court records.   Rather, the documents were copies of certified copies.   Coon contends the trial court erred in admitting the documents because they were not original certified copies.   We disagree.

 A purported copy of a writing in the custody of a public entity, or of an entry in the writing, is prima facie evidence of the existence and content of the writing or entry if:  (1) the copy purports to be published by the authority of the public entity which keeps the writing;  (2) the office in which the writing is kept is in the United States;  and;  (3) the copy is attested or certified as a correct copy of the writing or entry by a public employee having legal custody of the writing.  (Evid.Code, § 1530, subd. (a)(1)-(2).)   A copy of a certified copy of an official record is admissible unless there is a genuine question as to the authenticity or contents of the original, or it would be unfair to admit the copy in lieu of the original.   (People v. Atkins (1989) 210 Cal.App.3d 47, 55, 258 Cal.Rptr. 113 (Atkins );  Evid.Code, § 1521.)

In Atkins, to prove the defendant had served a prior prison term for receiving stolen property, the prosecution introduced copies of prison records and a copy of a certification from the custodian of records stating the copies of the prison records were from prison files.  (Atkins, supra, 210 Cal.App.3d at p. 53, 258 Cal.Rptr. 113.)   Defense counsel objected to the admission of the records because the certification was a copy.   The trial court overruled the objection and admitted the documents, finding them to be authentic.  (Ibid.)

On appeal, the defendant argued admission of the evidence violated the best evidence rule, which requires admission of the original of a writing to prove the content of the writing.  (Atkins, supra, 210 Cal.App.3d at p. 54, 258 Cal.Rptr. 113.)   The appellate court rejected the defendant's argument, concluding the copy of the certification fell within an exception to the best evidence rule that permits the admission of a copy in lieu of an original unless a genuine question is raised as to the authenticity of the original, or it would be unfair to admit the copy in lieu of the original.  (Id. at p. 55, 258 Cal.Rptr. 113.)

The exception referred to by the Atkins court has been replaced with the secondary evidence rule.  (Cal. Law Revision Com. com., 29B Pt. 4 West's Ann. Evid.Code (2009 supp.) foll. § 1521, p. 127.)   Under the secondary evidence rule, the content of a writing may be proved by otherwise admissible secondary evidence unless there is a genuine dispute concerning the material terms of the writing and justice requires exclusion of the secondary evidence, or admission of the secondary evidence would be unfair.  (Evid.Code, § 1521, subd. (a).)

 Here, there is no genuine dispute concerning the material facts contained in the documents provided by the Riverside County Superior Court.   Coon's trial counsel in this case also represented Coon in the Riverside County case.   Had there been any material inaccuracies or discrepancies in the documents, defense counsel was in a position to identify them and call them to the trial court's attention.   He did not do so.   Defense counsel on appeal also has not identified any material inaccuracies or discrepancies in the documents.

Nonetheless, the secondary evidence rule differs from the rule applied in Atkins in that the secondary evidence rule does not obviate the requirement for a writing to be authenticated before it is admitted into evidence.   (Evid.Code, §§ 1401, subd. (b), 1521, subd. (c).)  However, just as there is no genuine dispute in this case as to material contents of the documents, there is no genuine dispute as to their authenticity.

 Authentication of a writing requires introduction of sufficient evidence for a trier of fact to find the writing is what the proponent claims it to be, or proof by other means, such as a stipulation, an admission, or a presumption, that the writing is what the proponent claims it to be.   (Evid.Code, § 1400.)   The means of authenticating a writing are not limited to those specified in the Evidence Code. (Id., § 1410.)   A writing can be authenticated by circumstantial evidence and by its contents.  (People v. Gibson (2001) 90 Cal.App.4th 371, 383, 108 Cal.Rptr.2d 809;  Young v. Sorenson (1975) 47 Cal.App.3d 911, 915, 121 Cal.Rptr. 236.)   Both the transmit terminal identification header and the contents of the documents support a determination the documents were, in fact, records from the Riverside County case file.

Coon's reliance on the Massachusetts Supreme Court's decision in Commonwealth v. Deramo (2002) 436 Mass. 40, 762 N.E.2d 815 (Deramo ) is misplaced for two reasons.   First, in Deramo, there were material discrepancies between the original and the copy of the certified copies at issue.  (Id. at pp. 46, 49, 762 N.E.2d 815.)   Second, the Deramo court never considered whether the copies of the certified copies were admissible under a rule like the secondary evidence rule.   In fact, there is no indication from Deramo that the state of Massachusetts even has a rule like the secondary evidence rule.

Since the documents faxed from the Riverside County case were admissible under the secondary evidence rule and there was sufficient evidence to authenticate them, we conclude the trial court did not err in admitting them into evidence in the trial of the on bail allegations for counts 1, 2, 6, 9, and 10.   In view of our conclusion, we do not address Coon's argument that the admission of the evidence was prejudicial.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The jury acquitted Coon of two additional counts of receiving a stolen vehicle (Pen.Code, § 496d;  counts 4 and 8).   In addition, the trial court granted Coon's motion under Penal Code section 1118.1 for a judgment of acquittal for three counts of unlawful taking and driving of a vehicle (Veh.Code, § 10851, subd. (a);  counts 3, 5, & 7).

2.   During the first search, police found some scales, more than 100 small baggies, a calculator, and a spoon with some residue on it inside a toolbox in the garage.

FOOTNOTE.   See footnote *, ante.

McCONNELL, P.J.