Filed 8/16/19




                       CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F075749
        Plaintiff and Respondent,
                                                           (Super. Ct. No. 1480530)
                  v.

DAVID LEE MCDANIEL III,                                          OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy
Ashley, Judge.
        Arguedas, Cassman & Headley and Raphael M. Goldman, Law Office of Dan
Roth and Dan Roth, for Defendant and Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Jesse
Witt, and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I of the Discussion.
       David Lee McDaniel III appeals from multiple convictions for robbery arising
from robberies at several stores and restaurants in Patterson and Westley. He challenges
the admission of his police-interrogation statement; the admission of a text exchange
between his mother and him, to show an adoptive admission on his part that he
committed multiple, local robberies; the admission of a book (and related documents)
about ostensible identity fraud, found in his car; the admission of cell phone records from
his cellular carrier; and the admission of evidence of his height and weight based on
DMV records. He also challenges the trial court’s denial of his motion to sever the
robbery charges for purposes of trial.
       We conclude the trial court properly admitted McDaniel’s police-interrogation
statement. However, admission of the text exchange between McDaniel and his mother
to show an adoptive admission of guilt on his part, and of the book and documents found
in his car, was error. We further conclude that these errors, taken together, were
prejudicial. We therefore reverse and remand for further proceedings consistent with this
opinion.1
                            PROCEDURAL HISTORY
       McDaniel was charged by an information filed in the Stanislaus County Superior
Court. The information alleged 10 counts of robbery relating to six separate incidents in
which retail establishments in Patterson and Westley were robbed. (Pen. Code,2 § 211.)
The robberies at issue occurred over a period ranging from June 2014 to October 2014.
A jury convicted McDaniel of nine of the 10 robbery counts alleged in the information.
The nine counts of conviction related to robberies at a Papa Murphy’s Take ‘N Bake
Pizza (Papa Murphy’s) store (counts 1, 2), a McDonald’s restaurant (counts 3, 4), a CVS

1     Our disposition makes it unnecessary to address McDaniel’s remaining
contentions.
2      Subsequent statutory references are to the Penal Code unless otherwise specified.


                                             2
store (count 5), an AutoZone store (counts 7, 8), and a Subway restaurant (counts 9, 10).3
The remaining count, count 6, related to a robbery at a MetroPCS store; McDaniel was
acquitted of this count.
       The information also included prior conviction allegations as to all counts, based
on two alleged prior convictions under section 211 that were dated April 7, 2003. More
specifically, the information alleged, as to each count, that McDaniel had suffered two
prior convictions for a serious felony (§§ 667, subd. (a), 1192.7, subd. (c)) and two prior
convictions for a serious or violent felony (§§ 667, subd. (d), 1192.7, subd. (c), 667.5,
subd. (c)). The information further alleged, based on the two prior section 211
convictions, that McDaniel had served a prior prison term (§ 667.5, subd. (b)). The trial
court found, in a bifurcated proceeding, that the prior conviction allegations attached to
the counts of conviction were true.
       McDaniel was sentenced to an indeterminate term of 125 years to life in prison on
his convictions. He was sentenced to an additional determinate term of 25 years on the
sentence enhancements alleged under section 667.5, subdivision (a). His aggregate
sentence therefore was 150 years to life in prison.
                                          FACTS
       The instant robbery charges stemmed from six incidents at six separate stores or
restaurants. Law enforcement was able to obtain surveillance videos of all but one of the
incidents. The fact that the robberies occurred was not in dispute at trial. The issue at
trial was whether McDaniel was the robber in each instance. The robber’s face was
obscured in all the videos. Furthermore, Stanislaus County Sheriff’s Detective Michael
Andriese testified that no witness identified McDaniel as the robber in any of the
robberies at issue. The case against McDaniel was therefore entirely circumstantial.


3    All the affected establishments were located in Patterson with the exception of the
Subway, which was in Westley.


                                              3
A. The Robberies
         1. Robbery at Papa Murphy’s, June 7, 2014
         A Papa Murphy’s pizza store in Patterson was robbed of $400 from the cash
register at approximately 8:40 p.m. on June 7, 2014 (the store’s closing time was 9:00
p.m.). A video of the incident was played for the jury. Two Papa Murphy’s employees,
McKayla B. and Christine D., were in the store at the time of the robberies and testified at
trial.
         McKayla testified, with reference to the video, that a man walked into the store,
“grabbed” her “by the neck,” and guided her towards her coworker (Christine). The man
asked McKayla and Christine to open the register and the safe. They opened the register
for him but told him they did not have access to the safe. “[The man] told [McKayla and
Christine] to go and kneel on the ground.” He “started taking out all of the bills” from
the register.
         McKayla testified the man was six feet one inch or six feet two inches tall and
“pretty built.” She estimated he weighed about 210 pounds. His face was partially
covered with a “black mask” of a camouflage-type material. He was wearing “work
pants and a black hoodie” and “light” camouflage gloves. McKayla reconfirmed the
gloves were light-colored.
         McKayla noted she did not see any weapon on the man. However, the man had
his left hand in his pocket as if he was holding something, which gave the impression he
had a weapon.
         Christine corroborated McKayla’s testimony, adding the man was “[o]f African
American descent.” Neither McKayla nor Christine identified McDaniel as the robber.
         2. Robbery at McDonald’s, June 11, 2014
         A McDonald’s restaurant in Patterson was robbed of $346.48 from two cash
registers at approximately 9:30 p.m. on June 11, 2014 (the restaurant’s closing time was



                                               4
11:00 p.m.). Employees N.S., Belen R., and Jose G. were working at the McDonald’s at
the time of the incident. Surveillance video clips of the incident were played for the jury.
N.S. and Belen also testified for the People.
       With reference to the video clips, N.S. testified that a man walked into the
restaurant; he may have been “black or dark Hispanic.” He was wearing dark glasses and
gloves. He had his hand under his shirt to suggest he might have a gun. He was also
holding a large burlap bag; the bag was about two and a half feet square. He asked N.S.
to open her register; N.S. called to Belen, her manager, to come over and open the
register. The man slid the drawer out of the register, put the drawer in his bag, and “ran
out the door.”
       Belen, for her part, added that the man was Black, weighed about 270 pounds, was
wearing black gloves, and his lower face was covered with a camouflage bandana. Belen
opened two registers for the man, who took the drawers out of the registers and placed
them in “his sweater or a bag” and “[t]hen he just left.”
       A statement from Jose was admitted into evidence by stipulation. Jose stated that
he believed the person who robbed the McDonald’s was a “black male.” The man was at
least six feet tall and wore a “green camouflage bandana around his face.”
       3. Robbery at CVS, June 14, 2014
       A CVS store in Patterson was robbed of $200 from a cash register at
approximately 9:35 p.m. on June 14, 2014. Surveillance video clips of the incident were
played for the jury. Jessica B., who was working at the CVS at the time of the incident,
testified for the People.
       Jessica testified she was ringing up a customer at the cash register on the store’s
front counter, when a man entered the store. She explained: “Well, what I thought was
another customer coming in turns out wasn’t a customer. Just completely walked in like
nothing, came behind the counter and told us to get on the floor and open the register.



                                                5
Once he got his money, he just left.” She added she could not see the person’s face
because “he was wearing a hoodie and had a bandana over his [nose and mouth] – just
showing basically his eyes.” The person appeared to be African American based on the
visible areas of skin. The person had a bag in one hand (the bag appeared to be a tan
fabric bag) and kept the other hand in a pocket. Jessica did not know what, if anything,
was in the pocket. She noted: “It just looked like the hand was in there and that was
about it.” The person was wearing “the kind of gloves that don’t have the fingertips on
them,” i.e., “cutoff” gloves. Jessica described the person as a “big guy.” She observed:
“Very tall. At least six-foot. Little bulky, heavy. I don’t know how heavy, though. I’m
not too sure. Just a big guy, maybe weighed like 300 [pounds] or so.”
       Carmen R. also testified about the CVS incident. Carmen was a CVS warehouse
employee who was shopping at the CVS store at the time of the incident. Carmen
corroborated Jessica’s version of events and description of the robber. Carmen testified
the robber had his hand in his pocket “the whole time.” Carmen “didn’t see anything” in
his pocket but assumed it was “like, a gun or something.” She testified: “I just stood
there. He got the money and he left.” Carmen described the robber as “dark skinned”;
she also noted he was five feet 11 inches or six feet tall and weighed about 200 pounds.
       The police obtained additional information to the effect that a “small, red sedan”
was associated with the robbery. Police conducted an unsuccessful search for the vehicle
in the area around the CVS.
       4. Robbery at MetroPCS, July 25, 2014
       The MetroPCS store in Patterson was robbed of $1,912 on July 25, 2014.
McDaniel was acquitted of this robbery.
       MetroPCS employee Juan V. testified that, on the day in question, the robber
approached the store counter, asked Juan to hand over money from the cash register, and,
as he was leaving, instructed Juan to sit on the floor. Juan described the robber as a



                                             6
“black guy” with a patchy, “scruffy looking beard.” He was “probably like 6’2’’ [tall],”
and weighed “around 230” pounds. The robber was wearing a “straw fedora hat” that
was pulled down to the bridge of his nose.
       Esther B., a customer who was present in the store at the time of the robbery,
provided a statement that was admitted into evidence through stipulation. Esther
described the robber as a “light-skinned black male, possibly in his mid-thirties,” wearing
a rimmed beige hat, a long-sleeved shirt, “possibly beige pants,” and “black and yellow
cloth-type gloves.” She described the robber as about five feet 11 inches tall and
overweight, weighing 200 to 230 pounds.
       5. Robbery at AutoZone, August 19, 2014
       On August 19, 2014, the AutoZone store in Patterson was robbed of
approximately $590. A video of the incident captured by surveillance cameras at the
store was played for the jury. Two employees, Armando S. and Miguel M., were
working at the AutoZone store when the incident occurred. Armando testified for the
People.
       Armando testified that he was called to the front of the store by Miguel, where
Armando saw a “black male about six and a half feet [tall],” “[h]eavyset, about 280 to
300 pounds, wearing a blue [hoodie], and like a black rag on his face.” The black rag or
cloth hung to the man’s “waist line”; Armando could “only see his eyes.” The man asked
Armando to open the cash register. Armando “stepped over to the register,” “opened it
up,” and “put the money” into a black fabric bag that the man was holding open.
Armando added: “He had his hand in his pocket, and it seemed like he had something on
his hand or something, but it wasn’t visible because it was in his pocket.” The man was
not wearing gloves. Armando continued: “He just said, ‘Give me the money.’ [¶ ] He
was actually – actually really nice, with a calm voice. ‘Don’t worry, it’s not your money.
Just give it to me.’ [¶ ] So that’s what I did. [¶ ] That’s pretty much – did what he was



                                             7
asking [me] to do. That’s what I was told to do in case of an event like this one.” As the
man left, he said, “ ‘Can you get on the ground?’ ” He also used the word “avajo,” which
is a Spanish word meaning “down.”
       A statement attributed to Miguel was admitted into evidence by stipulation.
Miguel described the AutoZone robber as a Black male adult, about six feet four inches
or six feet five inches in height and weighing approximately 280 pounds. The man was
wearing a blue sweatshirt with a white logo on the front, a black cloth over his face, and
black mechanic-type gloves.
       6. Robbery at Subway, October 19, 2014
       On October 19, 2014, $1,270 was stolen during a robbery at a Subway in Westley.
Video clips of the incident were played for the jury. R.K. and Rosa R. were working at
the Subway when the robbery occurred. R.K. testified for the People.
       R.K. explained that a man entered Subway and asked for money from the cash
register. R.K. opened the register and he took the money in there. After R.K.’s
recollection of the incident was refreshed with reference to a statement she had given to
the police, R.K. testified the man had threatened to shoot unless she opened the register.
After R.K.’s recollection was refreshed again, she added that the man took the money
from the register and put it in a black cloth.
       The robber was all covered up in black clothing and wore gloves. He even had
“like, [a] beanie over [the] nose,” which covered his face and left only his eyes visible.
Consequently, R.K. could not determine his race, skin color, or features at all. R.K. did
not provide estimates of other physical characteristics of the robber other than to observe
that he was taller than she was.
       A statement from Rosa was admitted into evidence by stipulation. Rosa described
the robber as an adult Black male, who was about six feet tall, had a heavy build, wore
black clothing, a black beanie, black gloves, and a black cloth over his face.



                                                 8
       Surveillance video later obtained from a hotel north of the Subway shop showed a
white SUV going in one direction and then the other, on a street to the west of the hotel.
B. The Police Investigation
       1. Officer Testimony
       Stanislaus County Sheriff’s Detective Michael Andriese was the lead investigator
on the case. Andriese testified that the sheriff’s office publicized the robberies, including
by sending “local flyers” to other law enforcement agencies as well as press releases to
various newspapers. The press releases included details of the robberies and images of
the suspect (i.e., still shots obtained from video clips), whereby the suspect’s photograph
was released to the public.4 A newspaper article published in the local newspaper, the
Patterson Irrigator, provided details of the robberies and asked for cooperation from the
public in providing information about the robberies to, and identifying the suspect for, the
police. Eventually a “citizen” contacted Andriese and advised him that McDaniel was a
“possible suspect.” The police were also advised of other suspects, including M.S. and
P.C.
       P.C. was a “large-statured black male, heavier set,” who generally “fit the
description of the suspect in the [instant robberies]” and was “arrested for a burglary at
the Wal-Mart in Patterson around the same time.” Police did not further investigate P.C.
after witnesses to the instant robberies failed to identify him in a photo lineup.5
       The witnesses to the instant robberies also failed to identify M.S. in a photo
lineup. After a robbery at the MetroPCS store in Patterson, M.S. was located two miles


4      One of the flyers disseminated by the police was introduced into evidence. It
provided information on the robberies at Papa Murphy’s and McDonald’s, which
occurred on June 7, 2014, and June 14, 2014, respectively. The flyer was dated June 17,
2014, indicating that the police disseminated information about the robberies as they
occurred.
5      Witnesses to the robberies did not identify McDaniel in photo lineups either.


                                              9
away at a sports complex but did not appear nervous. M.S.’s nonchalant demeanor
suggested he was not the suspect police were looking for. Andriese did not further
investigate M.S. as a suspect with regard to any of the robberies.
       Officer Erik Peterson of the Livermore Police Department also testified for the
People. Peterson had earlier worked for the Stanislaus County Sheriff’s Department,
where he participated in the investigation into the instant robberies. Peterson testified
that McDaniel lived in an apartment in Patterson. The police obtained search warrants to
search McDaniel’s house and vehicle. On October 31, 2014, at 7:45 a.m., as the police
“were getting ready to serve the search warrant,” McDaniel emerged from the apartment
and drove off in his white Ford Explorer. Peterson followed McDaniel and conducted a
traffic stop on the Ford Explorer. Peterson then conducted a search of the Explorer
pursuant to a search warrant. There was a black duffle bag in the hatch area; the duffle
bag contained a black mechanic-style glove. A black satin bag was found in the rear seat
area. There was a black beanie in the Explorer as well.
       McDaniel’s apartment was also searched (McDaniel’s girlfriend lived at the
apartment too). The police searched the closets, which contained men’s and women’s
clothing as well as several pairs of shoes. A black do-rag, which Peterson described as a
“head covering of sorts,” was found in one of the closets. Among numerous pairs of
shoes in the closets was a pair of blue, gray, and black Adidas shoes, a pair of gray and
white Adidas shoes, and a pair of brown work boots. A black jacket (no hood) was found
among the clothes in the closet.
       Detective Andriese testified that the video of the AutoZone robbery showed the
robber wearing gray shoes with black laces. Andriese also testified that the video of the
Subway robbery showed the robber wearing gray and white shoes. (The shoes in the
video are, however, indistinct, and in contrast to his trial testimony, at the preliminary
hearing Andriese testified the shoes worn by the Subway robber looked like the pair of



                                             10
brown work boots found in McDaniel’s closet.) Video from the Subway robbery showed
the robber wearing a dark or black glove on his left hand; the black glove found in the
duffle bag in McDaniel’s Ford Explorer was a left hand glove.
       Andriese testified McDaniel’s apartment was in the vicinity of all the Patterson
businesses that were robbed but was 10 miles away from the Westley Subway that was
robbed.
       Andriese testified the cash register drawers taken during the McDonald’s robbery
were recovered and returned to McDonald’s. The drawers were not fingerprinted.
Andriese indicated fingerprinting the drawers would probably have been a good idea.
       Andriese also confirmed no witness had identified McDaniel as the robber in
relation to any of the robberies.
       2. Police Interrogation
       McDaniel was interrogated upon his arrest in this matter. A redacted version of
his interrogation statement was admitted into evidence.
       3. Cell Phone Evidence
       Stanislaus County District Attorney Investigator Darren Ruskamp testified as a
“cellular forensic expert” regarding how cell phones work as well as the content of
cellular network records. He interpreted records regarding McDaniel’s cell phone
obtained from McDaniel’s cellular provider. Ruskamp testified there was one cell phone
tower in Patterson and another one in Westley. McDaniel’s phone was used somewhere
in the area covered by the Patterson cell tower on the days on which the robberies at Papa
Murphy’s and CVS occurred. McDaniel’s phone was not used on the day on which the
McDonald’s robbery occurred. On the day of the AutoZone robbery, McDaniel’s phone
either made or received a call at some point in the day; however, the expert did not
specify that the local Patterson cell tower was used to connect that call. As for the day on
which the Westley Subway robbery occurred, McDaniel’s phone was used to make a call



                                            11
that day. However, on that occasion, McDaniel’s phone connected to the cell tower in
Patterson, which likely did not cover the Westley area.


                                       DISCUSSION
I.     Admission of McDaniel’s Interrogation Statement
       Detective Andriese interrogated McDaniel after he was arrested in connection with
the instant robberies. The defense objected to admission of McDaniel’s video-recorded
custodial interrogation during the preliminary hearing and thereafter also moved in limine
to exclude the interrogation at trial. The trial court ruled, both times, that there was no
Miranda violation and the interrogation was admissible. (Miranda v. Arizona (1966) 384
U.S. 436 (Miranda).) At trial, the People played a redacted video recording of the
interrogation for the jury. McDaniel argues the trial court erred, under Miranda, in
admitting the redacted interrogation statement. We conclude the interrogation statement
comported with Miranda’s requirements and was admissible.
       Andriese’s interrogation of McDaniel was video-recorded and the recording and
corresponding transcript are included in the record on appeal. Accordingly, we will
independently determine whether the challenged interrogation was obtained in violation
of Miranda. (See People v. Davis (2009) 46 Cal. 4th 539, 586; People v. Jennings (1988)
46 Cal. 3d 963, 979 (Jennings); People v. Gonzalez (2005) 34 Cal. 4th 1111, 1125.) We
apply federal standards in reviewing Miranda claims. (People v. Sims (1993) 5 Cal. 4th
405, 440.)
       A. Legal Framework Applicable to Miranda Claim
       In Miranda, the United States Supreme Court stressed that “the modern practice of
in-custody interrogation is psychologically rather than physically oriented,” whereby “the
very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on

      See footnote, ante, page 1.


                                              12
the weakness of individuals.” (Miranda, supra, 384 U.S. at pp. 448, 455.) Miranda
therefore established certain prophylactic safeguards that must be afforded to suspects,
including the rights to remain silent and to have counsel present during a custodial
interrogation. (Id. at p. 444.)
       As indicated above, Miranda applies to questioning under the coercive conditions
of official “custody.” (Miranda, supra, 384 U.S. at p. 444 [custodial interrogation means
“questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way”]; Rhode
Island v. Innis (1980) 446 U.S. 291, 300-301 (Innis) [“Miranda safeguards come into
play whenever a person in custody is subjected to either express questioning or its
functional equivalent.”]; People v. Kopatz (2015) 61 Cal. 4th 62, 80.)
       Once Miranda warnings have been given to a suspect in custody, if the suspect
invokes his rights, “all questioning must cease.” (Smith v. Illinois (1984) 469 U.S. 91,
98.) In other words, upon invocation of his rights, a suspect may not be subjected to
further interrogation. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 388 (Berghuis)
[“[i]f the right to counsel or the right to remain silent is invoked at any point during
questioning, further interrogation must cease” (italics added)].) “[T]he term
‘interrogation’ under Miranda refers … to express questioning” and “to any words or
actions on the part of the police … that the police should know are reasonably likely to
elicit an incriminating response.” (Innis, supra, 446 U.S. at p. 301.)
       On the other hand, “after giving a Miranda warning, police may interrogate a
suspect who has neither invoked nor waived his or her Miranda rights.” (Berghuis,
supra, 560 U.S. at p. 388.) “Even absent the accused’s invocation of the right to remain
silent,” however, “the accused’s statement during a custodial interrogation is inadmissible
at trial unless the prosecution can establish that the accused ‘in fact knowingly and
voluntarily waived [Miranda] rights’ when making the statement.” (Id. at p. 382.)



                                              13
       “The waiver inquiry ‘has two distinct dimensions’: waiver must be ‘voluntary in
the sense that it was the product of a free and deliberate choice rather than intimidation,
coercion, or deception,’ and ‘made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.’ ” (Berghuis,
supra, 560 U.S. at pp. 382-383.) “ ‘No effective waiver … can be recognized unless
specifically made after the [Miranda] warnings … have been given.’ ” (Id. at p. 383,
quoting Miranda, supra, 384 U.S. at p. 470.)
       “The main purpose of Miranda is to ensure that an accused is advised of and
understands the right to remain silent and the right to counsel.” (Berghuis, supra, 560
U.S. at p. 383.) “The prosecution therefore does not need to show that a waiver of
Miranda rights was express. An ‘implicit waiver’ of the ‘right to remain silent’ is
sufficient to admit a suspect’s statement into evidence.” (Berghuis, supra, at p. 384.)
“Where the prosecution shows that a Miranda warning was given and that it was
understood by the accused, an accused’s uncoerced statement establishes an implied
waiver of the right to remain silent.” (Berghuis, supra, at p. 384.)
       Furthermore, Miranda rights can be invoked at any time, affording a suspect “the
opportunity to reassess his or her immediate and long-term interests” and any decision to
invoke or waive rights with respect to police interrogation. (Berghuis, supra, 560 U.S. at
p. 388.) A defendant’s “course of conduct” during the interaction is relevant to the
question whether an express or implied waiver of the right to remain silent has been
established. (Id. at pp. 386, 388.)
       B. Factual Background Applicable to McDaniel’s Miranda Claim
       It is undisputed that McDaniel was under arrest and in custody at the time of his
interrogation, triggering the application of Miranda’s prophylactic protections.6 The


6     “Custody” means “a ‘formal arrest or restraint on freedom of movement’ of the
degree associated with a formal arrest.” (California v. Beheler (1983) 463 U.S. 1121,


                                             14
question before us is whether the prosecution established that McDaniel knowingly and
voluntarily waived his privilege against self-incrimination for purposes of the actual
interrogation conducted by Detective Andriese.7 If so, McDaniel’s subsequent
statements would be admissible in the prosecution’s case-in-chief.
       The interaction between Andriese and McDaniel proceeded as follows:

       “[ANDRIESE]:         Hi David. Hang on just a second.

       “MCDANIEL:           One question respectfully, and you can just cut to the
                            chase, am I under arrest? If that’s the case, then we
                            don’t have nothing to talk about.

       “[ANDRIESE]:         You have nothing to talk about?

       “MCDANIEL:           No. What do you want? What are – what’s…

       “[ANDRIESE]:         You – your name has come up in an investigation for a
                            robbery.

       “MCDANIEL:           How did my name come up?

       “[ANDRIESE]:         So with that, yes you are under arrest for robbery.
                            Having said that, you have the right to remain silent.
                            Anything you say can and will be used against you in a
                            court of law. You have the right to talk to a lawyer
                            and have him present with you while you’re being
                            questioned. If you cannot afford to hire a lawyer, one
                            will be appointed to represent you before any
                            questioning if you wish. Do you understand the rights
                            I’ve read to you? Having those rights in mind, do you
                            wish to talk to me further?

       “MCDANIEL:           What is going on?



1125; Oregon v. Mathiason (1977) 429 U.S. 492, 495; Green v. Superior Court (1985) 40
Cal. 3d 126, 135.)
7      “[T]he term ‘interrogation’ under Miranda refers … to express questioning” and
“to any words or actions on the part of the police … that the police should know are
reasonably likely to elicit an incriminating response.” (Innis, supra, 446 U.S. at p. 301.)


                                             15
       “[ANDRIESE]:         Well like I said your name has come up in an
                            investigation in a ro – in, um, a series of robberies,
                            okay?

       “MCDANIEL:           So I – I’m under arrest for my name coming up?

       “[ANDRIESE]:         Yeah.

       “MCDANIEL:           For my name coming up? For someone mentioning
                            my name, I’m under arrest?

       “[ANDRIESE]:         You’re under arrest because we’ve done an
                            investigation, about possibly it’s you. Can you tell me
                            about these?

       “MCDANIEL:           Wait, what did you just say?

       “[ANDRIESE]:         Can you tell me about the robberies?

       “MCDANIEL:           Positively if it’s me?

       “[ANDRIESE]:         We’ve determined that you were responsible in the
                            robberies.

       “MCDANIEL:           How the hell you determine that?

       “[ANDRIESE]:         We’ll discuss that in a little bit. Can you tell me about
                            them?

       “MCDANIEL:           Tell you about what?

       [ANDRIESE]:          The robberies.

       MCDANIEL:            What? Dude I’m sitting here broke as fuck, barely
                            fuckin’ making it. You think I would fuckin’ fo –
                            what – what – where’s the money, what? That’s crazy.
                            How did my name come up? Was it the fact I’m a
                            black man, a big black man?8

       [ANDRIESE]:          You think that’s why we picked you out ‘cause you’re
                            a black man?

8      In the unredacted recording, McDaniel also asked whether he was under
investigation for the robberies because of his “history,” indicating he had previously
“served time for robbery.”


                                             16
       MCDANIEL:             A big black man?

       [ANDRIESE]:           Why would it be a big black man?

       MCDANIEL:             Look everybody reads the papers man.

       [ANDRIESE]:           Okay. You’re talking about the papers?

       MCDANIEL:             Everybody reads the Irrigator.” (Italics added.)
       The interrogation continued in a similar vein. McDaniel insisted he had no other
knowledge of the robberies: “I don’t know anything about the particulars of any fuckin’
robberies.” He observed: “This is a small town. People talk out here.” He added: “I
don’t know shit. I sh- I know what I seen in the paper, what people say.”
       When Andriese explained the charges, McDaniel said: “This is very serious.” He
insisted: “Dude I ain’t did shit.” He expressed concern that the robberies would be
pinned on him, adding “[s]ometimes that shit happens and it doesn’t hold up.” He noted:
“[W]hat you’re talking about is gonna cost me the rest of my fuckin’ life.”9 At various
times he said, “This is insane,” and “This is crazy.”
       When Andriese pressed McDaniel to tell him about the robberies, McDaniel said:
“Listen, you know like I know anything you say can and will be used [against] you in a
court of law and it’s highly likely that it will be used against me whatever I say that
indicates that I was a participant in any of this shit. I could sit here and spill my guts to
you. What – what – what is that gonna do [for] me, except it’s gonna slap me in the face.
What? Why?” He added: “If your evidence is indicative of my guilt as you say it is,
what – why are – well then what the fuck do [you need me for]?” He continued: “Dude,
I called you and I told you … where I was at man. I told [the authorities] where I was. I
wasn’t trying to fucking hide.”



9       In the unredacted recording, McDaniel said: “My life is over. My life is over. If
thi – it’s over. It’s over. Just based on my history, dude, (unintelligible) it’s over.”


                                              17
       McDaniel noted: “I’m aware I’m under investigation. I’m gonna get charged.
I’m aware now.” He observed: “You’re trying to elicit a confession.” He said: “I’m
going to do life for some bullshit. You’ll never get that outta me. I’d rather die.
Seriously I’ve been to hell. I’ve been there.” He added: “You’re telling me I’m guilty
no matter what right now. That’s what you’re saying.”
       McDaniel asked Andriese: “Any of these robberies, was anybody hurt? Was
there a gun?” He added: “Seriously bro. Seriously. I don’t – I’m not a hard – I’m not a
hardcore motherfucker. I don’t shoot. I don’t do none of that shit.” He observed: “The
way you come at me was like fuckin’ I was a dead ca- closed case[,] like all I [was]
need[ed] for [was an] admission. On a sly.”
       Eventually Andriese inquired: “You need anything else? You wanna think about
this a little bit?” McDaniel responded: “What is there to think about other than taking
me to jail? What is there to think about? If you’re taking me, let’s just go out … we’ll
just go from there brother. I have to go, let’s just go, seriously.” Andriese offered
McDaniel a drink of water to calm him down. McDaniel replied: “I don’t want a drink
of water. If I’m going to jail, just please take me.”
       As stated above, the prosecution played a video-recording of McDaniel’s
interrogation for the jury. In closing argument, the prosecutor argued that McDaniel’s
statements amounted to “adoptive admissions that he committed the robberies.”
       C. Analysis
       McDaniel argues he invoked his right to remain silent at the very beginning of the
exchange with Andriese, by stating: “[A]m I under arrest? If that’s the case, then we
don’t have nothing to talk about.” (See Berghuis, supra, 560 U.S. at pp. 381-382 [“an
accused who wants to invoke his or her right to remain silent” must do so affirmatively
and unambiguously].) He contends that any further interrogation was therefore
prohibited under Miranda, necessitating the exclusion of all his subsequent statements.



                                             18
We disagree. Even assuming McDaniel invoked his right to remain silent when he said,
“[A]m I under arrest? If that’s the case, then we don’t have nothing to talk about,” his
later interrogation statements were not obtained in violation of Miranda.
       When McDaniel made the above-referenced statement to the effect there was
nothing to talk about, Andriese did not respond by interrogating or questioning him about
the facts of the crimes under investigation. Rather, Andriese informed McDaniel that he
was indeed under arrest for robbery and proceeded to give him, for the first time, the full
set of Miranda warnings. Andriese then asked whether McDaniel understood those
rights; in the video of this interaction, McDaniel appeared to nod at this point. Andriese
further asked whether, in light of McDaniel’s Miranda rights, McDaniel wanted to talk to
Andriese. In response, McDaniel directed a series of questions at Andriese: “What is
going on?”; “So I – I’m under arrest for my name coming up?”; and “For my name
coming up? For someone mentioning my name, I’m under arrest?”
       The fact that McDaniel engaged with Andriese by asking him questions about the
case amounted to an implied waiver of the right to remain silent that he had arguably
earlier invoked. At the same time, “[t]here is no basis in this case to conclude that
[McDaniel] did not understand his rights” or that he was coerced to talk to Andriese.
(Berghuis, supra, 560 U.S. at p. 385.) McDaniel’s waiver was therefore valid. (Id. at pp.
385-387 [“As a general proposition, the law can presume that an individual who, with a
full understanding of his or her rights, acts in a manner inconsistent with their exercise
has made a deliberate choice to relinquish the protection those rights afford.”].)
       Indeed, it was only after McDaniel demonstrated a willingness to talk to Andriese
(and thereby impliedly waived his right to remain silent) that Andriese first asked a
question that may properly be construed as interrogation for purposes of Miranda. (See
Innis, supra, 446 U.S. at p. 301 [“Miranda safeguards come into play whenever a person
in custody is subjected to either express questioning or its functional equivalent.”].)



                                             19
Specifically, Andriese commenced the interrogation when he said: “You’re under arrest
because we’ve done an investigation, about possibly it’s you. Can you tell me about
these [robberies]?” (Italics added.) Since Andriese employed express questioning or its
functional equivalent for purposes of eliciting incriminating responses once McDaniel
had validly waived his (arguably) previously-invoked right to remain silent, there was no
Miranda violation. Nor did McDaniel make any potentially incriminating statements
until after he was advised of his Miranda rights and had validly waived them.
       In short, McDaniel’s custodial interrogation comported with the requirements of
Miranda and his responses, in turn, were admissible in the prosecution’s case-in-chief.
II.    Admission of Text Exchange Between McDaniel and his Mother
       A.     Background
       The prosecutor sought to admit a September 10, 2014 text message exchange
between a cell phone associated with McDaniel and a cell phone associated with
McDaniel’s mother. The exchange was as follows (abbreviations, spelling, and
punctuation as in original):

       “[McDaniel]:            Stop telling lies!!!

       “[McDaniel]:            That’s why Johnny left yo nasty ass..

       “[Mother]:              U r the 1 who needs to learn how 2 respect. I am ur
                               mother and ur days r number

       “[McDaniel]:            Why are you so hateful

       “[Mother]:              An that is why u will b locked up 4 robberey of the
                               stores in this area

       “[Mother]:              Why do you feel u hv 2 b so nasty an fowl ur sick”
                               (Italics added.)
       The prosecution filed a motion in limine to admit the text exchange between
McDaniel and his mother, with a focus on the mother’s statement to the effect, “An that
is why u will b locked up 4 robberey [sic] of the stores in this area.” Indeed, this


                                                20
statement is the reason why this text exchange was relevant, in the first place, to the
disputed issue at trial, i.e., whether McDaniel was the perpetrator of all the charged
robberies.
       The prosecution, in its motion in limine, argued: “[McDaniel’s] failure to respond
to his mother[’s] last text message where she accused him of committing the robberies in
the area is admissible as an adoptive admission by [McDaniel] that he committed these
robberies.”
       McDaniel filed a motion in limine to exclude the text exchange on several
grounds, rejecting the People’s proffered basis for admission. He argued that under the
applicable circumstances, his failure to text his mother back did not reasonably constitute
an adoptive admission by him that he had committed the robberies referenced by his
mother. He further argued that “there is no foundation that [the mother] has personal
knowledge to make such a statement,” rendering her statement merely “an improper
opinion.”
       At trial, a record from McDaniel’s cellular carrier documenting the fact of the text
exchange, as well as the content of the text messages, was admitted into evidence. The
court in turn instructed the jury on adoptive admissions pursuant to CALCRIM No. 357.
Subsequently, in closing argument, the prosecutor forcefully argued, with reference to the
record of the text exchange, the content of the mother’s text message, and the jury
instruction on adoptive admissions, that McDaniel had failed to respond to his mother’s
statement and this failure amounted to an “adoptive admission” on his part that he had in
fact robbed stores in the local area.
       On appeal, McDaniel argues that admission of the text exchange to show an
adoptive admission on his part was error. We agree.




                                             21
       B. Analysis
       “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.”
(Evid. Code, § 1221.) Thus, “ ‘ “[w]hen 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.” ’ ” (Jennings,
supra, 50 Cal.4th at p. 661.) The proponent must establish the statement was made under
circumstances that would normally call for a response if the statement were untrue.
(People v. Riel (2000) 22 Cal. 4th 1153, 1189.) Consequently, the “adoptive admission”
exception to the hearsay rule generally applies to accusatory statements but can apply
even if a “direct accusation in so many words” is not made. (People v. Fauber (1992) 2
Cal. 4th 792, 852.)
       People v. Wilson (1965) 238 Cal. App. 2d 447 provides a useful summary of “the
general rules as to the use of accusatory statements,” in this context:

       “ ‘Accusatory statements … are plain hearsay. They may properly find
       their way into the record only as admissions, under the familiar exception
       to the hearsay rule. If the accused responds to the statement with a flat
       denial, there is no admission and hence nothing that may be received in
       evidence. If, on the contrary, the truth of the statement is admitted, the
       statement may properly be introduced. A third situation is presented when
       the accused stands mute in the face of the accusation or responds with an
       evasive or equivocal reply. In that situation this court has held that under
       certain circumstances both the statement and the fact of the accused’s
       failure to deny are admissible on a criminal trial as evidence of the
       acquiescence of the accused in the truth of the statement or as indicative of
       a consciousness of guilt.

             “ ‘The theory underlying this rule is that the natural reaction of an
       innocent man to an untrue accusation is to enter a prompt denial. Where


                                             22
       his response is silence, evasion, or equivocation, it is for the trial court to
       determine in the first instance whether the accusation has been made under
       circumstances calling for a reply, whether the accused understood the
       statement, and whether his conduct or response was such as to give rise to
       an inference of acquiescence or guilty consciousness. Where the trial judge
       determines that such an inference may be drawn, the statement is then
       admitted, not as substantive evidence in proof of the fact asserted but
       merely as a basis for showing the reaction of the accused to it.’ ” (Wilson,
       supra, 238 Cal.App.2d at p. 457.)
       Here the prosecution’s theory that the mother’s statement was admissible to show
an adoptive admission by McDaniel was based on the fact that McDaniel did not text his
mother back to deny her indirect accusation that he had committed several local
robberies. However, given the nature of text messaging, the fact that McDaniel did not
text his mother back was not sufficient to show that he had adopted his mother’s
statement. Text messaging is different from in person and phone conversations in that
text exchanges are not always instantaneous and do not necessarily occur in “real time.”
Rather, text messages may not be read immediately upon receipt and the recipient may
not timely respond to a text message for any number of reasons, such as distraction,
interruption, or the press of business. Furthermore, people exchanging text messages can
typically switch, relatively quickly and seamlessly, to other forms of communication,
such as a phone call, social-media messaging, or an in-person discussion, depending on
the circumstances. In short, in light of the distinctive nature of text messaging, the
receipt of a text message does not automatically signify prompt knowledge of its contents
by the recipient, and furthermore, the lack of a text response by the recipient does not
preclude the possibility that the recipient responded by other means, such as a phone call.
       The text exchange at issue here was not instantaneous but rather unfolded over a
20-minute period until it stopped. There was no evidence as to whether and when
McDaniel read the text message in which his mother suggested he had robbed multiple
local stores. To the extent he read it, it was entirely possible he responded to it by calling
his mother or talking to her in person. Considering the distinctive nature of text


                                             23
messaging, the instant record provides no basis for a conclusion, in the first instance, that
McDaniel, with knowledge of his mother’s statement, in fact failed to deny or respond to
it and, in turn, that he thereby adopted it. (See People v. Maki (1985) 39 Cal. 3d 707, 712
[“To prove ‘adoption’ of a hearsay statement sufficient to make it admissible under
[Evidence Code] section 1221, … it must be shown ‘that the party to an action against
whom a declarant’s hearsay statement is offered as an adoptive admission, (1) had
knowledge of the contents of declarant’s statement, and (2) having such knowledge, has,
by words or other conduct, manifested his adoption or his belief in its truth.’ ”].)
       Furthermore, the text exchange at issue captured a heated argument between
McDaniel and his mother in which McDaniel had emphatically texted his mother, “Stop
telling lies!!!” Given that McDaniel had angrily demanded that his mother “[s]top telling
lies,” the prosecution could not reasonably establish that a putative failure to contradict
his mother’s subsequent text to the effect that he would “b locked up 4 robberey [sic] of
the stores in this area” constituted an admission by him that he had committed the
robberies she referenced.10 Indeed, to the extent his mother’s texts were based on
newspaper articles or police flyers about the robberies, any failure to respond may well
have reflected McDaniel’s frustration with his mother, rather than an admission of guilt
as to the commission of the robberies.
       In sum, here there was not an adequate showing that McDaniel had in fact failed to
respond to or deny his mother’s indirect accusation. Second, a response or denial was not
necessarily warranted under the circumstances. Finally, there was no other evidence of
McDaniel’s reaction to his mother’s statement that showed adoption of it on his part.


10      As noted above, the police had publicized the robberies by disseminating flyers
and the local newspaper had published an article describing the robberies as well. The
details of the robberies as well as images of the robber (the images were derived from
video footage collected from the affected establishments) were therefore publicly known.




                                             24
(See People v. Chism (2014) 58 Cal. 4th 1266, 1297 [defendant’s mere possession of
letter accusing him of committing a crime did not render letter admissible to show
adoptive admission on his part to the effect that he committed the crime, where he did not
read the letter in the accuser’s presence and there was no evidence of his reaction to it];
People v. Lewis (2008) 43 Cal. 4th 415, 498 [defendant’s mere possession of
incriminatory drawings, without more, did not constitute an adoption of the message
reflected in the drawings, which were therefore not admissible to show adoptive
admission on his part], overruled on other grounds by People v. Black (2014) 58 Cal. 4th
912.)
        We therefore conclude the prosecution could not reasonably show that McDaniel
failed to respond to his mother’s assertion and thereby adopted it and admitted to
committing multiple local robberies. In turn, it was error to admit the text exchange to
show an adoptive admission on McDaniel’s part that he committed the robberies
referenced by his mother.
        C.     The Issue was Properly Preserved for Review
        The People argue that, rather than obtaining a ruling from the court, the parties had
agreed to mutually resolve the question of the admissibility of the text messages. The
People further contend that a subsequent stipulation by the parties to the effect that a
record from McDaniel’s cellular carrier documenting the text exchange was authentic and
admissible as a business record of the carrier, precludes McDaniel from challenging the
admission of the text exchange on appeal. We disagree with these contentions.
        The record of the proceedings in the trial court indicates that, ahead of the hearing
on in limine motions, the parties and the court discussed, in chambers, the admissibility
of the text exchange between McDaniel and his mother. Although this discussion was
not reported, the subsequent discussion regarding the issue at the hearing on in limine
motions was reported. At the in limine motions hearing, the court did not directly



                                              25
address the admissibility of the mother’s statement to show an adoptive admission on
McDaniel’s part but rather focused on a residual issue, that is, how much of the rest of
the text exchange to include as context for the mother’s operative statement. The court
directed the parties to work together to resolve this residual issue, noting that were they to
fail, it would step in to do so. Defense counsel verbally iterated, for purposes of making
a complete record, that he was objecting in the first instance to admission of the content
of the mother’s text message to show an adoptive admission, on McDaniel’s part, to the
effect that he had committed multiple local robberies. The court permitted counsel to
make a record to preserve his objection to admission of the mother’s statement to show
an adoptive admission by McDaniel. Thereafter, counsel did not further object on this
basis, indicating he viewed additional objections to be futile.
       Subsequently, defense counsel stipulated that a record from McDaniel’s cellular
carrier reflecting the text exchange between McDaniel and his mother was admissible as
an authentic business record. There was no stipulation to the effect that the content of the
mother’s statement was admissible to show an adoptive admission by McDaniel that he
had committed several local robberies.
       Here, key parts of the discussion regarding the admission of the text exchange
appear to have occurred in chambers and were unreported. Considering this fact, as well
as the discussions that were reported, we conclude the most reasonable interpretation of
the proceedings is that the court had informed the parties it was ruling in the
prosecution’s favor, i.e., that the operative exchange (the mother’s statement and the lack
of a responsive text from McDaniel) was admissible to show an adoptive admission by
McDaniel. At the same time, the court directed the parties to work together to resolve
how much of the rest of the text exchange to include as context for the operative part.
       Our conclusion that the court had effectively ruled that the content of the mother’s
text message was admissible to show an adoptive admission by McDaniel is supported by



                                             26
the fact that defense counsel reiterated his objection to such a ruling, for purposes of
clarification of the record, when directed by the court to work with the prosecutor for the
limited purpose of identifying how much of the rest of the exchange to include as context
for the mother’s statement. Furthermore, the fact that the record does not include a
stipulation to the effect that the content of the mother’s statement was admissible to show
an adoptive admission by McDaniel indicates this issue was resolved by a court ruling
(not a stipulation). Indeed, defense counsel’s eventual stipulation that the record
documenting the text exchange, obtained from McDaniel’s cellular carrier, was authentic
and admissible as a business record of the cellular carrier, presupposes a ruling that the
content of the mother’s text message was admissible in the first instance. Without such a
ruling, the cellular carrier’s record would be irrelevant and inconsequential.
       The People contend, however, that defense counsel’s stipulation to the effect that
the cellular carrier’s record reflecting the text exchange was admissible as a business
record, precludes him from challenging admission of the content of the mother’s
statement to show an adoptive admission by McDaniel. This contention lacks merit.
       As stated above, defense counsel only stipulated to admission of the cellular
carrier’s record under the business record exception. This stipulation renders admissible
just the fact of the text exchange, not the content of the mother’s text messages. More
specifically, since the declarant of the relevant message was McDaniel’s mother and she
did not have a business duty to make the statements at issue, the substance of her
statements is not covered by the business record exception. (See MacLean v. City &
County of San Francisco (1957) 151 Cal. App. 2d 133, 143 [business record exception to
hearsay rule is premised on principle that hearsay statements recorded as part of routine
business duty are deemed trustworthy and hence are admissible under the exception];
Hoel v. City of Los Angeles (1955) 136 Cal. App. 2d 295, 309 [business record exception
does not make admissible statements that would constitute hearsay upon oral testimony



                                             27
of business representative]; Harris v. Alcoholic Bev. Con. Appeals Bd. (1963) 212
Cal. App. 2d 106, 109 [arrest records are admissible to show the fact of an arrest but
hearsay narrations included in police records are inadmissible].) In short, the parties’
stipulation that the cellular carrier’s record of the text exchange was an authentic business
record was not the basis of admission of the content of the mother’s text messages.
       Rather, it reasonably appears that the content of the text messages was admitted on
the basis of a prior court ruling admitting the content to show an adoptive admission on
McDaniel’s part. (See Evid. Code, § 1221.) Indeed, the court instructed the jury
accordingly and the prosecution, in closing, argued that the text messages showed an
adoptive admission by McDaniel. Defense counsel repeatedly objected to admission of
the content of the mother’s text message to show an adoptive admission by McDaniel. In
light of defense counsel’s specific objections, it cannot reasonably be inferred that he
stipulated to admission of the content of the mother’s text message. We therefore
conclude counsel properly preserved the issue for review.
       D.     Conclusion
       Since we have concluded that admission of the text messages to show an adoptive
admission by McDaniel that he had robbed local stores was error, we must next consider
whether the error was prejudicial. The People do not dispute McDaniel’s further
contention that evidence of the text exchange was also prejudicial. Nonetheless, we will
more fully address the question of prejudice on account of this evidence in section IV of
this opinion, post.
III.   Admission of Book (The Paper Trip III) and Notes Found in McDaniel’s Car
       The prosecution sought to admit a large sheaf of reading material that was found
in McDaniel’s car on October 31, 2014. The reading material consisted of (1) a
photocopy of a book or manual called The Paper Trip III; (2) a handwritten table of
contents for this book or manual; (3) a book catalog; (4) and a handwritten booklist.



                                             28
       The prosecution filed a motion in limine seeking admission of these materials.
The prosecution argued in the motion: “These documents are material and relevant to
further show [McDaniel’s] state of mind—his intention to avoid detection and
apprehension for the commission of these robberies.” Defense counsel objected to
admission of the documents on the grounds proffered by the prosecution.11 The court
ruled the documents were admissible for the purpose proffered by the prosecution. The
court noted the documents were “apparently found in [McDaniel’s] vehicle” and, to the
extent they did not belong to McDaniel, their relevance could be questioned in closing
arguments.
       We conclude the court erred in admitting the materials, including the copy of The
Paper Trip III, the handwritten table of contents, the book catalog, and the handwritten
booklist.
       A.     Background
       The introduction to The Paper Trip III explained that it was part of a book series.
The series addressed topics such as methods to “ ‘disappear’ from a troubling past and
‘reappear’ with a new identity based on government-issued ID.” The introduction noted
that the books had helped “ ‘[e]x-cons’ … to build new lives free of damaging records.”
The Paper Trip III itself addressed dubious and potentially illegal methods of obtaining or
creating “alternate ID” and developing a new identity. It contained chapters with titles
such as “Fingerprints & Criminal Records,” and “Make Your Own ID.”
       As for the book catalog found with The Paper Trip III, it listed books with titles
such as “How to Clear Your Criminal Record” and “Clean State: The New Laws.”
These books were checked off on the catalog, presumably reflecting the owner’s interest
in acquiring them. Finally, the handwritten booklist encompassed a long list of dubious-
sounding books, including “How to Clear Your Criminal Record”; “Criminal Records

11     Subsequently, defense counsel further objected on hearsay grounds.


                                            29
Manual”; “Have You Been Or Are You in the FBI Files”; “Reborn Overseas”; “100
Ways to Disappear”; and “The ID Forger.”
       B.      Analysis
       In light of the relevant circumstances, the book and documents proffered by the
People had little or no relevance to the disputed issue at trial, i.e., the identity of the
person who perpetrated each of the charged robberies. First, there was no evidence as to
when McDaniel acquired the copy of the book, The Paper Trip III, and the related
documents. Furthermore, McDaniel had two prior convictions, had served time in prison,
and was on parole. Finally, there was no evidence showing that McDaniel had taken any
affirmative steps to “disappear” so as to avoid apprehension for the instant crimes. Given
that McDaniel had a prior criminal record, along with the lack of any evidence showing
when he acquired the photocopied book as well as the lack of any evidence showing he
had taken steps to “disappear” after committing the instant robberies, the challenged
materials cannot reasonably be said to reflect a state of mind, on his part, of actively
trying to avoid apprehension for committing the charged robberies. Rather, since the
materials related to methods of erasing an existing criminal record, which McDaniel had,
it appears more reasonable that he acquired the book and book catalogs because of
concerns about his preexisting criminal record. The relevance of these materials to the
identity of the perpetrator of the instant robberies is therefore tangential at best.
       At the same time, admission of the book and related materials created a definite
danger of undue prejudice, in that the references to “[e]x-cons” and the burdens of a
criminal record could reasonably lead the jury to infer that McDaniel had a prior criminal
record and was a person of bad character. (See People v. Jackson (2016) 1 Cal.5th 269,
300 (Jackson) [“[Character evidence] is said to weigh too much with the jury[,] and to so
overpersuade them is to prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge.”].) Thus, this evidence did little more



                                               30
than imprint an image of McDaniel, in the eyes of the jury, as a dubious character at best
and a serial criminal at worst.
       We conclude the court abused its discretion in granting the prosecution’s motion
in limine to admit this evidence to show “[McDaniel’s] state of mind—his intention to
avoid detection and apprehension for the commission of these robberies.” Even were this
evidence relevant for the purpose identified by the prosecution, it should have been
excluded under Evidence Code section 352 as it was far more prejudicial than probative.
Nor was there any valid basis to admit this evidence under Evidence Code section 1101,
subdivision (b). Evidence Code section 1101, subdivision (b) permits the admission of
evidence of prior bad acts to show something other than criminal disposition. The
statutory inquiry turns on degrees of “similarity” between the prior bad acts and the
charged offenses. (See, e.g., Jackson, supra, 1 Cal.5th at p. 300.) Since there was no
“similarity” between McDaniel’s possession of the documentary materials and the
charged robberies, Evidence Code section 1101, subdivision (b) did not apply. In short,
the court erred in admitting these materials.12
       The People do not dispute McDaniel’s further contention that admission of this
evidence was prejudicial. Nonetheless, we next evaluate whether the erroneous
admission of this evidence—i.e., The Paper Trip III, the handwritten table of contents for
it, the book catalog with various titles checked off, and the handwritten booklist—was
prejudicial.




12     We have determined that defense counsel’s objection to the prosecution’s motion
in limine properly preserved this issue for review. The People argue the issue was not
preserved for review because McDaniel did not object on the basis of Evidence Code
section 1101. This argument is unavailing because, as explained above, Evidence Code
section 1101 was inapplicable to begin with and, in any event, the evidence was not
proffered under that section.


                                             31
IV.    Prejudice from Erroneous Admission of Text Exchange and The Paper Trip III
       McDaniel contends the erroneous admission of his mother’s text messages to the
effect that his “days [were] number[ed]” because he would be “locked up” for robberies
of “the stores” in the “[local] area,” was prejudicial. He further contends the erroneous
admission of The Paper Trip III, the table of contents, the book catalog, and the
handwritten booklist, was also prejudicial. The People do not assert otherwise,
contesting McDaniel’s claims of error alone.
       Evidentiary errors under state evidence rules are evaluated under the “reasonable
probability” standard of prejudice announced in People v. Watson (1956) 46 Cal. 2d 818.
(See, e.g., People v. Fudge (1994) 7 Cal. 4th 1075, 1103.) We conclude the errors
detailed above were prejudicial under this standard. In other words, considering the
record as a whole, there is a reasonable chance that had the complained-of evidence been
excluded, the result of the proceeding would have been more favorable to McDaniel.
(People v. Soojian (2010) 190 Cal. App. 4th 491, 521 [indicating that, for purposes of
Watson standard, “a hung jury is a more favorable result than a guilty verdict,” and, in
turn, that the standard is met when there is a reasonable chance the absence of error
would change a single juror’s mind].)
       Here, the case against McDaniel was entirely circumstantial. In assessing
prejudice from the above-described errors, we will first summarize relevant aspects of the
case against McDaniel. The witnesses to the robberies for the most part described the
respective suspect as a tall (the descriptions of the respective suspect ranged from five
feet 11 inches to six feet six inches), heavy (the descriptions ranged from 200 to 300
pounds), Black or “Hispanic” (the descriptions ranged from “light-skinned black” to
“dark Hispanic”) man. None of the witnesses identified McDaniel as the robber. The
witnesses to the robbery at the MetroPCS store testified that the robber had a scruffy
beard and was wearing a straw fedora pulled down to the bridge of his nose. Although



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there was no evidence the robber’s face was otherwise obscured, the witnesses still did
not identify McDaniel as the robber. The descriptions given by witnesses to the various
robberies did little to narrow the pool of potential suspects, especially when none of the
witnesses identified McDaniel as the robber. There was also evidence that police were
tipped off about another tall, heavy, Black man in relation to the robberies (this suspect
was arrested for burglarizing a Walmart around the time of McDaniel’s arrest).
       The prosecutor argued, based on surveillance video clips obtained from the
affected businesses, that a jacket, various shoes, and a black do-rag found in McDaniel’s
apartment matched items worn by the robber in a couple of the charged robberies.
However, this theory was not particularly persuasive as the videos and corresponding still
photographs in evidence do not show the robber’s clothing and shoes with any
particularity, thereby undermining the ability to compare them to items collected from
McDaniel’s apartment. In addition, the prosecutor acknowledged the existence of color
distortions in the video evidence, further undermining the probative value of such
comparisons. Nor was any evidence adduced to verify the accuracy of the color
depictions in the videos.
       To give an example to illustrate this point, Detective Andriese testified at the
preliminary hearing, with reference to video footage of the Subway incident, that the
robber’s shoes matched a pair of brown work boots found in McDaniel’s closet. At trial,
Andriese made an about turn and suggested the shoes worn by the Subway robber
matched a pair of gray sneakers found in McDaniel’s closet. Andriese’s contradictory
testimony goes to show the videos were not distinct enough to enable reliable
comparisons of items worn by the robber in the respective, relevant incidents with items
found in McDaniel’s apartment.
       Finally, the clothing and shoes collected from McDaniel’s apartment were
commonly worn items that were not particularly distinctive. The jacket and shoes worn



                                             33
by the robber, as reflected in the relevant videos, were also generic looking. This fact
further undercut the probative value of the comparisons the People attempted to make
between items worn by the robber in a couple of incidents and items collected from
McDaniel’s apartment.
       As for McDaniel’s police interrogation, it too was not particularly probative.
While McDaniel made some incriminating statements, he mostly expressed concerns that
the robberies were being incorrectly pinned on him. He did not confess and denied
committing the robberies. He suggested the authorities were focused on him because he
was a big, Black man, with a general resemblance to the robbery suspects depicted in
surveillance video images as published in the community newspaper.13 Furthermore, to
the extent some of McDaniel’s statements may be interpreted as a failure to emphatically
deny guilt, those responses would be consistent with committing any one of the robberies
and not necessarily guilt as to all the charged robberies.
       On another note, a black left-hand glove was found in McDaniel’s car after his
arrest and video footage of the Subway robbery showed the robber wearing a dark glove
on his left hand. Also, McDaniel owned a white SUV and, on the day of the Westley
Subway robbery, a surveillance camera at a nearby motel captured a white SUV driving
in the area. However, this evidence was relevant only to the Subway robbery (the
Subway shop was located in Westley, 10 miles away from Patterson, and the robbery
there occurred in October 2014, two months after the last robbery in Patterson). In
addition, this evidence cannot be said to be overwhelming.
       The circumstantial nature of the prosecution’s case against McDaniel heightened
the importance of the erroneously-admitted evidence. The erroneously-admitted
evidence was also particularly damaging because it was purportedly relevant to all the


13    The unredacted version of the interrogation showed that McDaniel also expressed
a concern that the robberies would be pinned on him because of his history.


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charged counts and the fact of the existence of multiple counts itself bolstered the case as
to each individual count.
       Turning specifically to the erroneously-admitted text exchange, this evidence was
highly probative, indeed explosive. It captured the unfiltered views of McDaniel’s own
mother, who would reasonably be expected to have seen the flyers and articles about the
robberies, which included images of the suspects in the respective robberies. The text
exchange flagged for the jury that McDaniel’s own mother believed he was the person
committing the robberies in the local area.
       In addition, the text exchange was specifically introduced to show McDaniel
admitted to robbing several local stores (the jury was instructed on adoptive admissions).
Thus, the erroneously-admitted text exchange not only revealed that McDaniel’s own
mother believed he had robbed the local stores, but also permitted the jury to infer, based
on McDaniel’s failure to respond to his mother’s assertions, that McDaniel admitted he
had robbed the stores.
       Finally, the prosecutor understood the unique power of this evidence and devoted
considerable attention to the text messages in her closing argument. The prosecutor’s use
of the text exchange in closing argument rendered it singularly damning evidence against
McDaniel. The prosecutor showed a color chart depicting the text messages to the jury.
She argued: “Now let’s talk about the text, the text message. … [¶] So we’re focused
on a September 10, 2014, text message exchange between the cell phone numbers
associated with [McDaniel] and his mother. [¶] Particularly of interest is her statement
coming from her cell to his cell phone, ‘That’s why you will be locked up for the robbery
of the stores in this area.’ [¶] … [¶] Look at mom’s text message. I’ll show it to you.
[McDaniel’s] phone stops responding to his mother’s texts after she texts him that his
days are numbered and that he will be arrested for the robberies in the area. [¶] There’s
no more response from him once she types that. [¶] … [¶] You saw the complete text



                                              35
[ex]change between the devices associated with [McDaniel] and his mother.
[McDaniel’s] device simply doesn’t respond to her statement about the robberies.”
       The prosecutor then referenced the jury instruction on adoptive admissions given
by the judge. She methodically walked the jury through the instruction, explaining that
upon finding the requirements set forth in the instruction were met, the jury was
permitted to conclude “that [McDaniel] admitted the statement was true.” The prosecutor
concluded: “It’s our position that all of these requirements were met and that
[McDaniel] admitted that he committed the robberies. [¶] The lack of a response from
[McDaniel’s] phone to the texts from [his] mom’s phone that he will be arrested for the
robberies is an adoptive admission that he committed the robberies.” (Italics added.)
Thus, harnessing the instruction on adoptive admissions, the prosecutor was able to argue
that McDaniel had effectively confessed to committing the robberies. In doing so, she
lobbed into the case “ ‘ “[the] kind of evidentiary bombshell [that] shatters the
defense.” ’ ”14 (People v. Neal (2003) 31 Cal. 4th 63, 86; People v. Cahill (1993) 5
Cal. 4th 478, 503.)
       The prejudice from the erroneous admission of the text exchange was
compounded by the prejudice arising from the erroneously-admitted photocopied book
and related documents found in McDaniel’s car. These materials detailed potentially
illegal methods for obtaining a new identity and also reasonably led to an inference that
McDaniel had a prior criminal record. In light of the erroneously-admitted evidence of
The Paper Trip III and the handwritten and hand-marked booklists and catalogs, along
with the prosecutor’s emphatic references in closing argument to the text sent by


14     The actual text message sent by McDaniel’s mother stated: “An that is why u will
b locked up again 4 robberey [sic] of the stores in this area”; however, the word “again”
was redacted from the text exchange when it was admitted into evidence. (Italics added.)
Accordingly, McDaniel’s arguments regarding prejudice emanating from the word
“again” as used in the text message, are misplaced.


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McDaniel’s mother in which she accused him of committing the robberies in the local
area, the jury could be expected to infer not only that McDaniel’s mother believed he had
committed the robberies and McDaniel had admitted to doing so, but also that McDaniel
had a criminal past and was committing or exploring identity fraud. (See People v.
Thompson (1980) 27 Cal. 3d 303, 314 [“The admission of any evidence that involves
crimes other than those for which a defendant is being tried has a highly inflammatory
and prejudicial effect on the trier of fact.”].)
       Finally, the record reveals that the jury found the case to be a close one and
struggled to reach guilty verdicts on all counts. Closing arguments in the case were
wrapped up on Monday, March 6, 2017. The trial resumed on Wednesday, March 8,
2017, when the jury was instructed and then deliberated for the rest of the day. The jury
asked for a DVD player and readback of witness statements. The jury returned on
Friday, March 10, 2017, and again deliberated all day.
       At 11:16 a.m., on Friday, March 10, 2017, the foreperson sent the judge a note.
The note stated: “We are 10-2 on 4 counts. What happens if we are not unanimous on
these counts[?]” The judge informed the jurors: “[Y]our verdict on each count must be
unanimous.” The judge also directed the jurors to CALCRIM No. 3550. This
instruction, as given to the jury, provided: “Your verdict on each count must be
unanimous. This means that, to return a verdict, all of you must agree to it.”
       On the following Monday, March 13, 2017, the jury returned verdicts on all
counts. The jury found McDaniel guilty on all counts except count 6, in which he was
charged with robbery of the MetroPCS store. McDaniel was acquitted of the robbery of
the MetroPCS store. The fact that the jury acquitted McDaniel of the robbery of the
MetroPCS store and had reached an impasse on at least four counts until pushed by the
judge to reach unanimous verdicts, suggests the jury was open to the idea that someone
else was also committing robberies in the area at the same time. Given this context, as



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well as the fact that the case against McDaniel was circumstantial and far from
overwhelming, there is a reasonable chance that absent the improperly admitted evidence,
at least one juror would have found him not guilty of the other robberies as well.
       Accordingly, we conclude that, taken together, the erroneous admission of the text
messages and the documents found in McDaniel’s car, was prejudicial. Indeed, the
erroneous admission of the text messages alone requires reversal. McDaniel’s
convictions must therefore be reversed. Our disposition makes it unnecessary to address
McDaniel’s remaining contentions.
                                     DISPOSITION
       The judgment is reversed. The matter is remanded for further proceedings
consistent with this opinion.




                                                                _____________________
                                                                             SMITH, J.
WE CONCUR:


 _____________________
FRANSON, Acting P.J.


 _____________________
SNAUFFER, J.




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