Please refer to People v. Vincent Julian Valdez, Jr., Cal: Court of Appeal, 4th District., 3rd Div. 2011, for the proposition that it is never wise to post lurid details about your life on MySpace, facebook, Linkedin, Twitter, or any other social media outlet. [This opinion is only certified for partial publication, and I will not discuss unpublished aspects of the decision.]
Vincent Julian Valdez, Jr., was convicted of attempted murder, four counts of assault with a firearm, two counts of street terrorism from two drive-by shootings, and the jury found these offenses were committed for the benefit of a street gang, in addition to other enhancement findings.
To prove up the gang allegations in this case, the prosecution used printouts from Valdez’ MySpace account which included photographs of Valdez, a photo of Valdez making a gang signal, his gang moniker (“Yums”), and handwritten gang related notations.
The court admitted the MySpace printouts – not for the truth of the matter asserted – but for the following non-hearsay purposes: “corroborating a victim’s statement to investigators shortly after the first shooting that the victim recognized Valdez from the MySpace site and (2) as foundation for [the gang] expert[‘s] testimony. [The expert witness] relied on the MySpace page and other evidence as a basis for his opinion Valdez was an active T.L.F. gang member.”
Valdez challenged the authenticity of the evidence because the prosecution failed to show that the MySpace page necessarily belonged to Valdez, and there was no evidence that photographs and other content on the page were not falsified.
The court, however, states “while all writings must be authenticated before they are received into evidence (§1401),” the burden to authenticate “is satisfied [once] sufficient evidence has been produced to sustain a finding that the document is what it purports to be. [Citation]” Jazaveri v. Mao (2009) 174 Cal. App. 4th 301, 321. More importantly, the court held that neither Valdez, nor the author of any other material, must personally testify to authenticate a document. Authenticity may be shown by: “other means (§1410) [[i.e., there is] no restriction on the “means by which a writing may be authenticated”]).
In this particular case, the court found there to be sufficient evidence of authentication due to the “consistent, mutually-reinforcing content on the [MySpace] page [which] helped authenticate the photograph and writings, with no evidence of incongruous elements to suggest planted or false material.”
Predictably, Valdez relies on People v. Beckley (2010) 185 Cal. App. 4th 509, where the court found insufficient evidence to authenticate a photograph of defendant flashing gang signs on his girlfriend’s MySpace page. This court finds Beckley to be inapposite, however; explaining the obvious password requirement for posting and deleting content on Valdez’ purported MySpace page; and the “pervasive consistency of the content of the page, filled with personal photographs, communications, and other details tending together to identify and show owner-management of a page devoted to gang-related interests.” Of course, the Beckley court also stated it held “no illusions that hackers can adulterate the content of any web-site from any location at any time.” Oh, well.
After reading this decision, it would appear that if there is consistent, mutually reinforcing content on a social networking page, these webpages may be used against our clients in criminal cases – without requiring their testimony or that of a custodian of records working for MySpace, facebook, Linkedin, Twitter, or any other social networking website. That being said, this opinion will be invaluable when we need it.
