APPEAL from a judgment of the Superior Court of San Diego County, Honorable Michael T. Smyth, Judge. (Super. Ct. No. SCD232456)
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
This case presents a matter of first impression. Angel Zavala argues a computer printout produced by human query of a computer system that maintains cell phone data in the regular course of business does not fall within the business records exception under Evidence Code section 1271 to the general rule prohibiting hearsay evidence. Here, we hold a printed spreadsheet of call data produced for purposes of trial does fall within the business records exception where the underlying data is kept and maintained by a reliable computer program in the regular course of business and the other prongs of Evidence Code section 1271 are met.
A jury convicted Zavala of five counts of robbery (Pen. Code,*fn1 § 211) and one count of burglary (§ 459). As to each count of robbery, the jury found Zavala was a principal in the commission of the offenses and was vicariously liable within the meaning of section 12022, subdivision (a)(1). Zavala also admitted one prior prison term, an enhancement within the meaning of section 667, subdivision (a)(1) and section 668. The court denied probation and sentenced Zavala to 22 years eight months in state prison.
Zavala appeals, contending the trial court erred by admitting (1) Zavala's and Freddie Argallon's cell phone records and any testimony about the records, and (2) Detective Kevin Maxwell's testimony regarding the call log information seen on Zavala's cell phone. Zavala argues the cell phone records and Maxwell's testimony were hearsay and should have been excluded. We conclude the evidence of Zavala's and Argallon's cell phone records fell within the business records exception to the hearsay rule, and that Maxwell's testimony was admitted for a proper and limited purpose. Accordingly, we affirm the judgment.
Zavala and Argallon together committed three robberies. At trial, Maxwell testified regarding the ensuing investigation. Maxwell stated during Argallon's arrest, he seized Argallon's cell phone and discovered numerous phone calls that connected Argallon to the robberies. He also found several calls to Zavala. Later, Maxwell seized Zavala's cell phone and found Argallon's phone number on the call log and phone calls made to the locations where the robberies took place.
Cell Phone Record Evidence
Sprint records custodian Joseph Trawicki also testified during trial regarding Zavala's Sprint cell phone records. Trawicki stated he had worked for Sprint for eight and a half years as a custodian of records and was familiar with the way Sprint maintains its cell phone records, cell cite information, and text messaging records. Sprint uses a computer system that generates records of each phone call at the time it is made and then transmits the data to a call detail record archive. Trawicki testified that Sprint collects and maintains the call detail records of all its customers for billing purposes and keeps those records in the regular course of business.
Trawicki also described how he obtains those records in response to legal demands. When Sprint receives a search warrant or court order, the warrant or order is processed and evaluated for validity and then placed into a subpoena tracking system. A custodian or subpoena analyst then runs a query of the computer system that maintains the call records, usually by entering a specific telephone number. Upon query, the computer system automatically transfers the data relating to that phone number from the call detail record archive into an excel spreadsheet. The custodian or subpoena analyst then "packages" the document by burning it onto a CD, emailing or faxing the document to the entity that requested it.
Elizabeth Faraimo, a customer operations manager at Cricket Communications, also testified at trial regarding Argallon's cell phone records. Like Sprint, Cricket uses a computer system that records phone call data at the time of the call on a database. That call data is kept in the regular course of business, and upon legal demand, the data is accessed and a record of that data is produced for trial.