Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Ct. No. F06909214 John F. Vogt, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
PROCEDURAL HISTORY AND FACTUAL SUMMARY
Appellant Christopher Lee Brunt was charged in May 2008 by amended information with multiple sex offenses. Twenty-eight of the counts arose out of the sexual molestation of Brunt’s stepdaughter, A.B., and his biological daughter, N.B., over the course of a five-year period beginning in 2001. The molestation of A.B. started when she was in fifth grade and continued until just after her 15th birthday. The molestation of N.B. began when she was in either fourth or fifth grade and continued for approximately two years. A.B. is approximately four years older than N.B. Neither girl was aware that the other had been molested until N.B. reported the molestation to her mother in 2006 after her parents decided to divorce. When N.B. confided in her mother, the mother asked A.B. if she had been molested and she answered yes.
The 28 counts included forcible lewd acts, aggravated sexual assault, forcible rape, and forcible oral copulation of both girls. Each girl testified at trial. The physical evidence substantiated their testimony. The information also alleged that Brunt committed the offenses against multiple victims within the meaning of Penal Code section 667.61, subdivisions (b) and (e)(5).
Consistent with the girls’ testimony that Brunt ejaculated into washcloths, the evidence included two washcloths that contained spermatozoa consistent with Brunt’s DNA profile. In addition, in keeping with A.B.’s testimony that she held a stuffed Dalmatian during the abuse, the Dalmatian tested positive for spermatozoa consistent with Brunt’s DNA.
All further references are to the Penal Code unless otherwise noted.
The 29th count of the information charged possession of child pornography in violation of section 311.11, subdivision (a). Originally there were five counts of possession of child pornography, but four counts were dismissed. The pornography was discovered when police confiscated Brunt’s computer and searched it for evidence related to the molestations. After extensive pretrial motions aimed at excluding the images extracted from Brunt’s computer, the trial court admitted, over defense objection, nine images to prove the section 311.11 count and to prove specific intent of the remaining 28 counts. These images were later introduced at trial as exhibits 29A through 37A.
After a jury trial, Brunt was convicted of all counts. In a bifurcated proceeding, the trial court found the multiple-victim allegations true. The trial court sentenced Brunt to a total determinate term of 10 years eight months on counts 26, 27 and 29, plus an indeterminate term of 390 years to life on the remaining counts (26 counts of 15 years to life).
On appeal, there are no issues raised pertinent to the sexual-molestation counts. As a result, we do not need to recite the details of these offenses. The only issues on appeal challenge the sufficiency of the evidence to sustain the possession-of-child-pornography count and the instructions given to the jurors concerning this evidence. We set out the relevant facts related to count 29 in our discussion of the issues.
DISCUSSION
I. Sufficiency of the evidence
Brunt claims there is insufficient evidence to establish that the digital images extracted from his computer were in fact child pornography because there is no evidence establishing that the models were under 18 years of age or that he knew they were under the age of 18. Brunt argues there must be proof that the models are indeed children or a required element of the offense charged is missing.
The statute prohibits the knowing possession of any image which involves the use of a person under the age of 18 years, with knowledge that the image depicts a person under the age of 18 years, personally engaging in or simulating sexual conduct. (§311.11.) The age of the person depicted is obviously a necessary element of the offense for which the prosecution bears the burden of proof. (In re Angel R. (2008) 163 Cal.App.4th 905, 914 [prosecution bears burden of proving each element of criminal offense beyond reasonable doubt].)
We conclude the evidence is sufficient to prove that the seized images depicted girls under the age of 18. Pediatric nurse Patricia Spiro, who had extensive experience in pediatric sexual assault forensics, testified as an expert witness on the ages of the girls depicted in the images extracted from Brunt’s computer. She explained the Tanner Scale and how it is used by professionals to determine a child’s age by stages of physical development based on breast size, genitalia, and pubic hair. She explained that the Tanner Scale is not a precise instrument, that it gives a general approximate age, and that the only way to pinpoint a child’s exact birth date is by looking at the birth certificate. She also testified that use of the Tanner Scale requires looking at more than one aspect of the child’s physical development. She admitted that in some of the photos not enough of the child’s physical anatomy was depicted to allow use of the Tanner Scale. She testified that in some of the photos, the age range she assigned the model was based not on the Tanner Scale itself, but was reached by using her clinical assessment experience and her observations of the child’s facial appearance.
Spiro looked at the photos marked as exhibits 29A through 37A. She testified that four photos depicted a female under age 18 (exhibits 29A, 32A, 34A, 35A); two photos depicted females at Tanner Stage III (ages of 12 to 14) (exhibits 30A, 31A); one photo depicted a female in either Tanner Stage III or IV (ages 12-14 or 13-15) (exhibit 33A); one photo depicted two females, one at Tanner Stage III (12-14 years) and one under age 18 (exhibit 36A); and one photo depicted two females under age 18 (exhibit 37A). In addition to the expert testimony of Nurse Spiro, the jury was able to view the pictures for themselves and heard a police department technician testify that the images extracted from the computer were originally taken from web sites using the word “teen” or “young” in their web addresses.
Expert testimony is allowed on any subject where the witness has special knowledge, skill, experience, training, or education in a particular subject. (Evid. Code, § 801.) Understanding a child’s sexual and physical development requires information beyond the normal experience and knowledge of the average juror. (People v. Kurey (2001) 88 Cal.App.4th 840, 847-848.) Spiro had sufficient qualifications and experience to qualify as an expert on the highly probative issue of whether the models in the images were under the age of 18. It was then up to the jurors to evaluate her testimony in light of the other evidence, including the images themselves, and the testimony about how the images found their way onto Brunt’s computer.
Proof necessary to satisfy the element of age is not limited to documents of actual age, but includes appearance evidence and any other relevant evidence probative on the issue. (People v. Montalvo (1971) 4 Cal.3d 328, 335; People v. Kurey, supra, 88 Cal.App.4th at pp. 847-848; People v. Castaneda (1994) 31 Cal.App.4th 197, 203.) Courts have recognized that, “‘Experience teaches us that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular the outward physical appearance of an alleged minor may be considered in judging of his age; a contrary rule would for such an inference be pedantically over-cautious.’” (People v. Montalvo, supra, at p. 335, citing 2 Wigmore, Evidence (3d ed. 1940) § 222, pp. 5-6.)
The jurors were free to give each piece of evidence the weight to which it was entitled in deciding whether the prosecution had proven the necessary age element beyond a reasonable doubt. The actual appearance of the girls, along with the other evidence presented by Spiro and the police technician, is sufficient to support the jury’s finding that the models in the images were under the age of 18.
Likewise, although Brunt testified he did not go to any of the web sites to look at girls under the age of 18, nor did he believe that any of the models were under age 18, the jury was free to reject Brunt’s testimony in light of the evidence that the models all appeared to be under 18 years old, and several of them appeared to be much younger than the age of 18, between the ages of 12 and 14. The evidence of the girls’ appearances and their apparent ages, along with the names of the web sites Brunt searched, is sufficient to support an inference beyond a reasonable doubt that Brunt knew the girls depicted in the images were under the age of 18.
II. Jury instruction
Having determined that there is sufficient evidence to support the child pornography conviction, we now turn to Brunt’s argument that the jury was not properly instructed on how to consider the evidence used to prove the child pornography count. The trial court admitted the evidence to prove both the substantive elements of the child pornography count and as circumstantial evidence of intent to commit the remaining counts. Brunt argues that, without proper instruction, this allowed the jury to consider the images as improper propensity evidence.
Brunt requested that CALCRIM No. 375 be given. The instruction pinpoints evidence admitted for special purposes and instructs that the evidence can only be used for that purpose. However, for reasons not apparent in the record, the instruction was not given. The prosecutor argued that the pornography evidence established a prurient interest in children.
First, as we have determined, the evidence was admissible, and necessary, to prove the child pornography count. Much of Brunt’s argument concerning the admission of the pornographic images fails because the images were not offered only to show propensity to commit a current offense based on a prior offense, but to prove the elements of a currently charged offense—the pornography charge. (See People v. Ewoldt (1994) 7 Cal.4th 380.) As the Attorney General has argued, Evidence Code section 1108, subdivision (a), provides for the admission of this evidence: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias that would allow the jurors to prejudge a person or cause on the basis of extraneous factors. It is not designed to avoid the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. (People v. Zapien (1993) 4 Cal.4th 929, 958; People v. Wright (1985) 39 Cal.3d 576, 585.)
Finally, even if a limiting instruction were required, there is no prejudice under any standard of review. (People v. Breverman (1998) 19 Cal.4th 142, 165 [instructional error not reversible unless examination of record establishes reasonable probability that error affected outcome]; People v. Mungia (2008) 44 Cal.4th 1101, 1134 [no need to determine whether instructional error is constitutional and subject to higher standard of review when error not prejudicial under any standard or review].) In order to convict on the remaining 28 counts, the jury had to have found the testimony of the two girls credible in all respects. These were not young children who could be led astray in their testimony by confusing questions or psychological pressure from adults, as was the case in People v. Pitts (1990) 223 Cal.App.3d 606. A.B. was a senior in high school at the time of trial; N.B. was 13. They were able to describe the acts committed and to place them in a specific time-and-place context. In addition, there was ample physical evidence to support the girls’ testimony. Moreover, there was no real reason for them to lie—despite Brunt’s theory that the girls lied to prevent him from gaining partial custody in the pending divorce because the children had a strained relationship with their father. Brunt was not seeking primary custody and there is no evidence to suggest the girls were aware of the custody discussions between their parents at the time they reported the abuse or that they objected to the proposed arrangement in the absence of the abuse.
The presence of nine images on Brunt’s computer would have had little impact on the jury’s determination of credibility in light of the other evidence. Put another way, had the jury not been inclined to believe the girls’ testimony in light of the other evidence, the nine images would not have persuaded them otherwise.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Hill, J., Kane, J.