DISCUSSION

We have reviewed the entire record and have found only one arguable issue; the other two possible issues for appeal lack merit. First, defendant could challenge the trial court’s denial of his motion to exclude evidence of some of the text messages between himself and the 15-year-old girl. Defendant had moved to exclude that evidence on two grounds: (1) the People had not preserved all of the text messages between the two, in violation of its duty under federal due process not to destroy exculpatory evidence (see California v. Trombetta (1984) 467 U.S. 479 (Trombetta); Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood)); and (2) the People did not sufficiently authenticate the text messages. The trial court rejected both arguments.

2 We conclude there was no error with these rulings. Although law enforcement has a duty not to destroy evidence that “possesses an exculpatory value that was apparent” before its destruction and that is unavailable through “comparable evidence” (Trombetta, supra, 467 U.S. at p. 489), that duty is not violated by the failure to preserve “potentially useful evidence” unless the police acted in “bad faith” (Youngblood, supra, 488 U.S. at p. 58). The trial court concluded that defendant had not established that the unpreserved text messages were exculpatory or that they were destroyed in bad faith. We have no basis to disturb this conclusion. A writing may be authenticated either by evidence that it was received in response to a communication or that it refers to matters unlikely to be known by the purported author. (Evid. Code, §§ 1420 & 1421.) The 15-year-old testified that defendant sent his incriminating text messages in response to her messages, and that he referred to having sex with both girls. This is sufficient to authenticate the text messages as originating from him. Second, defendant could argue that the second count of lewd and lascivious conduct involving the 15-year-old girl is invalid because the charging document alleges that the conduct occurred in January 2012, while the evidence at trial indicated that the conduct occurred the last week of December 2011. This discrepancy does not raise an arguable issue, however, because the charging document alleged that the conduct occurred “on or about” January 2012 and because the jury was properly instructed that “the People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.”

3 Lastly, defendant could argue that the abstract of judgment contains a clerical error because it refers to defendant’s two convictions against the 15-year-old girl as “Forcible Rape-Child” rather than “Lewd Act Upon A Child.” This argument has merit. Accordingly, the clerk of the superior court is directed to correct the abstract of judgment to reflect the appropriate description of the convictions for the violation of Penal Code section 288, subdivision (c)(1). With this correction, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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