Opinion
NOT TO BE PUBLISHED
Super. Ct. No. TM112335A.
RAYE, P. J.
A seven-year-old girl from Kern County; an eight-year-old girl from Tulare County; and the eight year old’s cousins from San Joaquin County, aged six and seven, reported to their respective mothers and then to the police that defendant Jeremy Scott Eickenhorst had either touched or asked to see their “privates” and told each of them to keep it a secret. The mothers testified that defendant had been alone with young and disabled children behind closed doors. The police confiscated his computer and found thumbnail images of child pornography.
A jury convicted defendant of five counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and one count of misdemeanor possession of child pornography (§ 311.11, subd. (a)), and found true the allegation that the crimes were committed against more than one victim (§ 667.61, subd. (e)(5)). The court sentenced defendant to state prison for 75 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the trial court applied the wrong standard of review in denying his motion for a new trial and failed to instruct the jury sua sponte on lesser related offenses. He also alleges insufficiency of the evidence and sentencing error. We affirm.
FACTS
Who’s Who?
During the time defendant was accused of committing lewd acts with the four little girls, he was studying to become a special education teacher in Kern County. His mother, Jennie, had been a caseworker for the Kern Regional Center for people with developmental disabilities. She hosted a support group for mothers of children with disabilities, including an annual pool party. She became close friends with several of the mothers in the group, including Laurie F., whose daughter Jessica was one of the victims; D.P., whose autistic son engaged in some bizarre behaviors after defendant babysat him; and Sheila L., whose five-year-old daughter Allison was also at a pool party with her brother, who was also severely disabled.
Only the minors and their parents whose given names are not among the 1, 000 most popular birth names during the last nine years (according to statistical information provided by the Social Security Administration) will be designated by initials, in order to reduce confusion and improve readability. (In re Branden O. (2009) 174 Cal.App.4th 637, 639, fn. 2; In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn. 1; Cal. Rules of Court, rule 8.400(b)(2).)
Defendant’s stepfather, Rick, was related to the parents of the other child victims. Don and Jenny C. lived in San Joaquin County with their three children, A.C. and Brenna, who were victims, and D.C. Don’s sister, K.C., lived in Tulare County with the fourth victim, Nicole C. Defendant attended holiday celebrations with this branch of the family.
Laurie, D.P., Jenny, and K.C. all testified that defendant spent time with the young children that made them uncomfortable. They ignored or minimized their discomfort, rationalizing that defendant enjoyed the children’s company because he was going to be a teacher.
As an expert testified is common with young victims of molestation, Jessica, A.C., Brenna, and Nicole kept the secret for a period of time as defendant had instructed them, and only over time did the truth dribble out, first to their mothers and then to the police. But, as is also often the pattern, some of the victims recanted portions of their allegations at trial.
Disclosures
A.C. and Brenna.
On July 4, 2006, A.C. told her mother that she had just seen defendant with her younger sister, Brenna, through a crack in the door. There are various versions of what she told her mother, but suffice it to say, her mother reacted immediately and asked her husband to make defendant leave the house. Although the two girls provided few details, their mother called the police the following day.
On July 5, 2006, Officer Kami Ysit interviewed nine-year-old A.C. and seven-year-old Brenna. A.C. told Officer Ysit that on three or four occasions, defendant asked to see her private parts. She routinely told him no. She did, however, allow him to put his hands on her hips, and he told her that it was their secret. On one occasion in particular, she made a deal with him that he would allow her to play his World of Warcraft computer game if she let him touch her hips. She also told Officer Ysit that she had seen defendant and her sister sitting on the floor in their bedroom facing each other with their legs spread apart. She told her mother because she was afraid he was doing something to Brenna and would try to see her private parts.
Brenna expressed her concern to Officer Ysit that defendant would not be able to become a teacher. Nevertheless, she told her that while they were alone in her room the previous day, defendant asked to see her private parts. Because she trusted him, she pulled down her pants and underwear to show defendant. He told her not to tell anyone; it was their secret. Once her clothing was pulled up, she sat in defendant’s lap and they rocked back and forth. Defendant touched her front and back private parts with his hand over her clothing. Brenna also stated defendant showed her his front private part either on this or another occasion. He pretended to be reading a Garfield book when someone knocked on the door.
A month later the girls were interviewed by a social worker. They gave a diluted version of the facts they had provided Officer Ysit, but Brenna did tell the social worker that defendant touched her vagina and bottom with his hand over her clothing, and A.C. told her that defendant asked to see her private parts on several occasions.
At trial, both girls recanted some of the more egregious allegations. A.C. testified that defendant had asked to see her private parts, but she insisted she refused. She stated she had made a deal with defendant to show him her private parts if he allowed her to play World of Warcraft, but she insisted that although she played the game she would not allow him to see her. She repeated that defendant told her to keep secret his request to see her private parts. She denied that defendant ever touched her in an inappropriate way.
Similarly, Brenna backtracked on what she had told Officer Ysit. She too denied that defendant had touched her private parts. She did remember being alone with him, but she could not remember what had happened. He did, however, ask her to show him her private parts, and she would sit on his lap when he read to her.
Nicole.
After learning of her nieces’ accusations against defendant, K.C., who had been molested as a child, “grilled” her daughter Nicole to ascertain if anyone had touched her inappropriately. Nicole, afraid of getting into trouble and of upsetting her mother, denied that anyone had touched her. A couple of years later, however, she confided in her cousins A.C. and Brenna, and ultimately in her mother.
In May 2008 Officer Erik Martinez interviewed Nicole. She told him about two separate incidents. First, around Thanksgiving of 2005, when she was eight years old, she hid with defendant in a closet during a game of hide and seek. According to Nicole, defendant touched her “sacred place” (her vaginal area) over the top of her clothing. Defendant told her it was a secret and not to tell anyone.
The second incident occurred a few months later at her mother’s house while defendant was babysitting. Again, defendant lured her into a closet, purportedly to tell her something private, and again touched her vaginal area and buttocks over her clothing. Defendant told her to keep it a secret.
Nicole’s trial testimony was consistent with her police interview.
Jessica.
Although Jessica was the first of the girls to be molested by defendant in the summer of 2004, she did not tell her mother until January of 2008. At that time, she told her mother, Laurie, that defendant had put his hand underneath her bathing suit top. Jessica was concerned about Laurie’s relationship with defendant’s mother, Jennie. Indeed they were close friends; in addition, Jennie was Laurie’s son’s caseworker and advisor on how to handle difficult behavioral issues. Despite the friendship, Laurie contacted the police.
A social worker from child protective services interviewed Jessica. Her statement to the social worker was consistent in all material respects with her trial testimony. After getting out of the pool during the swim party at defendant’s house, several of the children accompanied defendant to his room to watch television. Defendant sat on his bed between Jessica and five-year-old Allison. As Jessica started to doze off, she awoke because defendant was touching her breast area over the top of her bathing suit. She fell asleep, only to awaken again with defendant touching her breast area underneath her bathing suit top. She told him to stop. He did, but asked to see her private parts and offered: “I’ll show you mine if you show me yours.”
Jessica also recounted that several months later, she returned to defendant’s house with her mother and brother following a fight between her mother and stepfather. According to Jessica, defendant approached her with a “weird grin” on his face and asked her, “Are you going to show me, ” a reference, she believed, to her private parts. She pretended he meant a toy and said she did not bring it.
The Defense
Defendant testified in his own defense, denying all of the allegations each of the girls made against him. He could not explain why they would fabricate sexual misconduct allegations. He claimed to have had several girlfriends. He also testified that he did not download the child pornography on his computer, and he did not know the images were there. He admitted he lied to the police about various details, explaining that he was scared. He expressed profound disappointment that his teaching career had been permanently derailed.
His expert psychologist had little experience with child molesters. Nevertheless, following her interview with defendant, she concluded he was not a pedophile, sociopath, or psychopath.
Several of his mother’s friends testified, with mixed results. His mother’s best friend testified that defendant began babysitting her two children when they were about 11 and 12, and he did not touch either child inappropriately. While D.P., Jessica’s voice coach, testified that Jessica told her defendant had touched her outside her bikini top, she also testified she had uncomfortable suspicions about defendant because of her son’s bizarre behavior after defendant babysat him. Matthew, who has autism and cerebral palsy, repeatedly punched his penis, saying “diaper, diaper, ” his word for penis, and began licking his mother’s arm. He would not allow his mother to bathe or change him. Nor would he allow the personnel at the school he started a few days after defendant babysat him to change his diaper. The behavior diminished over time.
Contrary to Laurie’s testimony, Sheila denied that Laurie expressed discomfort about defendant’s being in the room with the girls and asked her to check on them. Sheila did not remember telling Laurie that defendant had touched Allison. She did testify, however, that she felt uncomfortable seeing defendant on the bed between nine- and five-year-old girls.
A computer forensic expert also testified on defendant’s behalf, but his testimony will be summarized within our discussion of the issues involving the child pornography found on defendant’s computer.
DISCUSSION
I. Motion for a New Trial
Defendant filed a motion for a new trial based on insufficiency of the evidence, pointing to various inconsistencies in the witnesses’ testimony. The trial court denied the motion with this terse analysis: “The matter being submitted, having heard the evidence, I did feel that there was sufficient evidence for each count for the jury to find the defendant guilty.”
“In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.].... [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523-524 (Davis).)
Defendant insists the trial court failed in its primary duty to weigh the evidence independently and, in so doing, employed the standard of review appropriate to an appellate court, not the trial court. We will not presume the court shirked its responsibility to independently assess the sufficiency of the evidence. While it is true the court’s brief analysis does not affirmatively demonstrate independent review, it also does not reflect a misunderstanding of the court’s burden on a motion for a new trial. Moreover, defendant had clearly set forth the court’s duty to independently review the evidence in his points and authorities in support of his motion for a new trial. From this record, we cannot say the court utilized the wrong standard of review.
As for the sufficiency of the evidence, defendant reiterates the same arguments his lawyer made to the jury at trial. He points out that the child victims first denied he had inappropriately touched them before they were “grilled” by their mothers and then interrogated by the police. Then, under oath, A.C. and Brenna recanted many of the allegations they had made during prior adult questioning. Once again, he emphasizes that Nicole testified they had played “ditch [D.C.]” to get rid of A.C. and Brenna’s little “runt” brother and compare notes about what defendant had done to each of them. The collusion, defendant points out, occurred before the girls testified.
In the motion for a new trial, defendant picked out various other discrepancies in the accounts provided by the children over time, by their mothers, and by the interrogating social workers and police. It is the jury’s prerogative, not ours, to assess the credibility of the witnesses and to determine the truth. It goes without saying that different witnesses both perceive and remember what happened differently. It is not our role to superimpose our assessment of the weight of the evidence on both the jury and the trial judge, all of whom were present in the courtroom and able to observe the witnesses’ demeanor, character, ability to perceive what happened, and capacity to tell the truth.
Moreover, as the expert on child sexual abuse accommodation syndrome testified, young victims typically try to keep the conduct secret before they disclose what happened to them, and quite often, they recant many of the allegations they previously disclosed. It was the jury’s task, equipped with an understanding of the common behaviors exhibited by children who have been abused or molested, to sort through the inconsistencies in their various accounts of what happened and to determine whether defendant was guilty beyond a reasonable doubt. We, of course, will not discount their testimony on appeal simply because it was plagued by the difficulties experts in abuse expect of very young children who have been molested.
The trial court did not abuse its discretion in denying the motion for a new trial because there is, in fact, ample evidence to support each of the counts. Defendant ignores on appeal, as he did at trial, that the girls’ stories were remarkably similar, and that Jessica, who lived in Kern County, had never met or talked to A.C., Brenna, or Nicole. Yet each girl explained either to her mother, the police, and/or at trial that defendant asked to see her “privates”; touched her hip, breasts, or genitals; and told her to keep it a secret. Whether Brenna ran out of her room to wash her hands, as her mother recounted, or whether A.C. peeked into the room through a crack in the door, or whether three of the girls talked about what defendant had done are all details the jury could determine, discount, or disregard. But none of the so-called inconsistencies disturbs our confidence in the verdicts in light of the substantial evidence in support of the charges, nor cumulatively do they manifest an “unmistakable abuse of discretion.” (Davis, supra, 10 Cal.4th at p. 524.)
II. Lesser Related Offenses
The prosecution charged defendant with five felony counts of lewd and lascivious conduct with a child under the age of 14 as well as four misdemeanor counts of child annoyance. At the conclusion of the prosecution’s case, however, the prosecutor moved to dismiss the misdemeanor counts over defense objection. The trial court granted the motion. Nevertheless, defendant requested instruction on misdemeanor child annoyance as a lesser related offense to section 288, subdivision (a). He contends the trial court violated his constitutional rights to due process and to present a defense by refusing to instruct on the lesser related offenses as requested. His claim falls in the face of Supreme Court authority to the contrary.
In People v. Birks (1998) 19 Cal.4th 108 (Birks), the California Supreme Court reversed its previous holding in People v. Geiger (1984) 35 Cal.3d 510 (Geiger) that a criminal defendant has a state constitutional right to instructions on lesser offenses that are not necessarily included in the charged offenses, “but merely bear some conceptual and evidentiary ‘relationship’ thereto.” (Birks, at p. 112.) Writing for the majority, Justice Baxter explained: “On careful reflection, we now agree that Geiger represents an unwarranted extension of the right to instructions on lesser offenses. Geiger’s rationale has since been expressly repudiated for federal purposes by the United States Supreme Court, and it continues to find little support in other jurisdictions. The Geiger rule can be unfair to the prosecution, and actually promotes inaccurate factfinding, because it gives the defendant a superior trial right to seek and obtain conviction for a lesser uncharged offense whose elements the prosecution has neither pled nor sought to prove. Moreover, serious questions arise whether the holding of Geiger, ostensibly based on the due process clause of the California Constitution, can be reconciled with other provisions of the same charter. By according the defendant the power to insist, over the prosecution’s objection, that an uncharged, nonincluded offense be placed before the jury, the Geiger rule may usurp the prosecution’s exclusive charging discretion, and may therefore violate the Constitution’s separation of powers clause.” (Birks, supra, 19 Cal.4th at pp. 112-113.)
Defendant acknowledges Birks but argues that a footnote undercut its holding. The footnote provides, in part: “Finally, nothing in our holding prevents the defendant from arguing in any case that the evidence does not support conviction of any charge properly before the jury, and that complete acquittal is therefore appropriate.” (Birks, supra, 19 Cal.4th at p. 136, fn. 19.) In view of this footnote and the evidence presented at trial, defendant contends the trial court should have instructed the jury on the lesser related offenses “to assist defense counsel in arguing the defense theory effectively at trial.”
Just recently, the Supreme Court gave a resounding endorsement of Birks by rejecting any invitation to revisit its logic or its constitutional underpinnings. In People v. Taylor (2010) 48 Cal.4th 574, 622 (Taylor), the court wrote: “We decline defendant’s request that we reconsider our holding in Birks. As we recently explained in denying a similar request, refusing to grant a defendant’s unilateral request for instructions on a lesser related offense does not violate any ‘constitutional due process right to present the “theory of the defense case...”.’ [Citation.]... As we observed in Birks, the United States Supreme Court has ‘never suggested’ that the federal Constitution requires instruction on offenses other than lesser included offenses of the charged crime when the evidence warrants. (Birks, supra, 19 Cal.4th at p. 124.) Defendant cites no decision or other authority issued since we decided Birks that warrants reconsideration of that decision.”
Defendant insists that Taylor does not disturb the earlier Birks dictum in its footnote “that defense counsel may choose to present a defense theory based on a lesser-related offense.” We agree with the Attorney General that defendant’s reading of the footnote is mistaken. The Supreme Court made the somewhat obvious observation that with or without Geiger, the defendant was free to argue he was entitled to an acquittal if the evidence did not support the charges before the jury. The observation did not, as defendant asserts, propose or suggest that there is a constitutional right to present a defense on lesser related offenses. Thus, under Birks, as reaffirmed in Taylor, defendant was not entitled to an instruction on the elements of misdemeanor child annoyance.
He further contends that the court’s refusal to instruct on child annoyance precluded the opportunity for jury nullification. A criminal defendant has no right to seek jury nullification. (People v. Williams (2001) 25 Cal.4th 441, 463.) He appears to confuse jury nullification with the legitimate argument to the jury that the prosecution has failed to prove the elements of the offenses beyond a reasonable doubt. Nothing in Birks or Taylor precludes the argument defense counsel in fact made that the evidence did not meet the requisite standard of proof, and therefore that the jury should acquit defendant of the crimes as charged. There was no instructional error and no violation of defendant’s constitutional rights.
III. Child Pornography
A. Destruction of the Hard Drive and Thumbnail Computer Files
Defendant moved to dismiss the misdemeanor child pornography charge because the computer malfunctioned as an agent for the Department of Justice was copying the hard drive for a forensic examination, and six months later he destroyed the thumbnail computer files. He contends the destruction of defense evidence constitutes a denial of due process. We begin with a summary of how and when the computer data were destroyed.
During a preliminary examination of defendant’s hard drives, Michael Sparks, an agent with the California Department of Justice, Bureau of Investigation and Intelligence, found no child pornography. A detective from a police department in San Joaquin County informed Sparks that a technician had found a “thumbs database” containing child pornography on one of the hard drives. To facilitate a complete forensic analysis, Sparks initiated a copying process to occur overnight. When he returned the following day, however, he heard a clicking sound coming from the hard drive. He tried to restart it, but the hard drive was not working.
The forensic software had copied about one-half of the hard drive before crashing. Sparks found three unusual software programs: Active Eraser, which deletes files completely; Ghost Surf, which hides a person’s Internet protocol address when he is on the Internet; and Net Duster, which deletes a person’s search history on the Internet.
Sparks also found 24 thumbs database files containing what he believed to be child pornography. Each file matched with a “thumbnail” image, had a file name, a file path, and a date the image was placed on defendant’s hard drive. But no larger images were recovered. The file path indicated that the “owner” had accessed and created the thumbnail files, but it did not indicate who, by name, created the images. All the images were placed on defendant’s computer on May 19, 2006, between 7:39 p.m. and 8:01 p.m.
Sparks kept the thumbnail files for approximately six months. Then, without notice to defendant, he erased them. He explained that, in his experience, thumbnail files like those found on defendant’s computer were not prosecuted. He further explained that because of space limitations, his agency cannot save all the files it copies.
A private forensic computer investigator who had examined the hard drive after it was damaged testified for the defense. He stated that thumbnail files are hidden files whose existence might not be known to the computer user. Defendant contends data on the hard drive might include information on the sites that originated the images and when the image files were accessed. The defense investigator had not, however, turned on the hard drives for fear of causing additional damage. He opined that a data recovery professional could disassemble the hard drive and try to read the data, but he had not requested the services of a data recovery professional. He did believe the software programs could be used for legitimate purposes.
In California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta), the United States Supreme Court held that a state violates a criminal defendant’s right to due process when it destroys evidence that (1) has “an exculpatory value that was apparent before the evidence was destroyed” and (2) is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at p. 489.) Defendant fails to establish either prong of the Trombetta test.
Factually, two different acts resulted in the destruction of the evidence, the first inadvertent and the second intentional. As Sparks was copying the hard drive overnight, it crashed. Nevertheless, half of the material on the disk had been saved, including the thumbnail images. The court found that the crash was inadvertent. Sparks later erased the computer drives with the copied material, although the hard paper copy remained and was introduced at trial. Sparks testified he erased the computer drives after six months because he did not think defendant would be prosecuted and because the Department of Justice did not have the storage capacity to retain all copied materials.
Defendant has presented no evidence that there was exculpatory evidence contained on the hard drives. Unlike the breath samples in Trombetta or the marijuana plants in United States v. Belcher (W.D.Va. 1991) 762 F.Supp. 666, the evidence on the hard drives was not “absolutely critical and determinative” to the prosecution’s case. (Id. at p. 672.) Indeed, defendant’s expert merely speculated that there might be information on the hard drive that would indicate who downloaded the pornographic images. Such speculation does not meet Trombetta’s requirement that the exculpatory nature of the evidence must be apparent to law enforcement before a duty to preserve it arises.
Nor has defendant demonstrated that he is unable to obtain the exculpatory evidence by any other means. To the contrary, his own expert testified that a data recovery professional might have been able to recover the information he sought, but defendant failed to avail himself of this opportunity. Again, defendant must rely on pure speculation that the data would not have been recovered. Because he did not bear his burden of proving either that law enforcement was aware of the exculpatory value of the evidence or that he was unable to obtain the evidence by any other means, his due process claim fails.
Despite defendant’s argument to the contrary, his due process claim also fails under the bad faith analysis required by the Supreme Court in Arizona v. Youngblood (1988) 488 U.S. 51, 57 [102 L.Ed.2d 281] (Youngblood). The state’s obligation to preserve evidence is even more limited when it is only potentially exculpatory. According to Youngblood and its progeny, the defense must prove the state withheld or destroyed the evidence in bad faith. (Illinois v. Fisher (2004) 540 U.S. 544, 547-548 [157 L.Ed.2d 1060] (Fisher).) On appeal, we review for substantial evidence a trial court’s factual finding whether the state acted in bad faith. (People v. Memro (1995) 11 Cal.4th 786, 831.)
Defendant reargues the evidence of bad faith. He insists Sparks acted in bad faith because he did not notify defendant, or his lawyer, before erasing the hard drives shortly before the trial. Yet, defendant points out, he was scheduled to testify. Moreover, defendant emphasizes there was no evidence that the destruction of the thumbnail files data was authorized by standard practices, standards of good investigation, or by judicial order. But defendant ignores the deferential scope of appellate review and forgets that it is his burden to demonstrate that the evidence was damaged or deleted in bad faith. (Fisher, supra, 540 U.S. at pp. 547-548.)
The record discloses ample evidence to support the trial court’s finding that Agent Sparks did not act in bad faith when the copying apparatus malfunctioned or when he deleted the copied material six months later. The prosecution did not have to prove Sparks’s conduct conformed to standardized practices and procedures. Rather, the court was at liberty to accept his representation that it was not feasible for his office to retain all copied hard drives. Here the absence of bad faith merely augmented the fundamental gaps in defendant’s due process analysis since his claim is predicated on nothing more than the speculative notion that there might have been something exculpatory on the hard drive. But he failed to have a specialist attempt to recover the data to determine whether there was or not. As a result, he has failed to prove that his right to due process was violated under any of the standards enunciated in Trombetta or Youngblood.
B. Sufficiency of the Evidence of Child Pornography
Section 311.11, subdivision (a) proscribes possession of child pornography. The jury was instructed on the elements of the crime as follows: “1) A person must knowingly possess or control any matter, representation of information, data, or image, including, but not limited to any photograph, computer hardware, computer software, computer floppy disc, data storage media, CD-Rom or computer generated equipment or computer generated image;
“2) This involves the use of a person under the age of 18 years; and
“3) This person under the age of 18 years is personally engaging in or simulating sexual conduct.”
Relying on Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 [152 L.Ed.2d 403] (Free Speech) and United States v. Hilton (1st Cir. 2004) 386 F.3d 13 (Hilton), defendant contends there was insufficient evidence that the thumbnail images were of actual children, a necessary element of the crime. The constitutionality of the California statute is not challenged. Indeed, in People v. Kurey (2001) 88 Cal.App.4th 840 (Kurey), the Second District Court of Appeal analyzed section 311.11 in light of the United States Supreme Court’s admonitions in Free Speech. The Fourth District explained: “It is noteworthy that nowhere in its opinion did the court condemn a statutory construction similar to section 311.11. The California statute applies to the possession of material ‘the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct.’ The California statute thus requires a real minor and also requires knowledge of minority on the part of the perpetrator. There is no constitutional infirmity in section 311.11 similar to that found in Free Speech.” (Kurey, at p. 846.)
The issue is not whether real children under the age of 18, rather than computer-generated or cartoon images, must appear in the pictures to sustain a conviction under section 311.11, subdivision (a), but whether the actual thumbnail images, presented to a properly instructed jury, constitute substantial evidence to sustain the conviction. Defendant seems to suggest the prosecution had the burden to produce independent evidence of the age of the children depicted. Not so.
The age of the persons depicted in the computer images was a relevant and material fact; indeed, it was an essential element of the crime. “Proof of age, like proof of any other material fact, can be accomplished by the use of either direct or circumstantial evidence, or both.” (Kurey, supra, 88 Cal.App.4th at p. 847.) “Appearance evidence as proof of age has been received in prior California cases. In People v. Montalvo [(1971) 4 Cal.3d 328, 335] the court discussed in dictum the proof necessary to satisfy the element of age, noting that it was not limited to documents of actual age. Instead, “[i]n every case such evidence [corporal appearances] 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 his age.” (Kurey, at p. 847.)
Defendant’s position is as flawed as his counterpart’s was in Kurey. He seems to suggest that the Free Speech analysis criminalizing material depicting a person who “appears to be” a minor is equivalent to using copies of the pictures depicting “apparent age” as proof of the material fact of minority. As the court in Kurey aptly pointed out, “This is a flawed comparison. The California statute requires that the person depicted actually be under the age of 18, not that they just appear to be. In order to convict an individual of a violation of section 311.11, the jury must be convinced beyond a reasonable doubt of the victim’s minority status. Apparent age and actual appearance are simply forms of evidence allowable for proof of this fact.... [¶]... [¶]... [T]he trial judge had his own observations of the video clips as well as the expert testimony of Ms. Ming. This constituted substantial evidence that the persons depicted were in fact under the age of 18.” (Kurey, supra, 88 Cal.App.4th at pp. 848-849.)
Unlike in Free Speech and Hilton, the prosecution did not rely on any expert opinion about the age of the persons in the thumbnail images, but it did rely on the jurors’ own determination whether the pictures they were shown depicted real, rather than computer-generated, images or adults made up to look like children. We have also independently reviewed the images, as requested by the defense, and conclude that the pictures provided to a properly instructed jury constitute substantial evidence that minors appeared in the thumbnail images.
In a related argument, defendant contends the pictures do not depict sexual conduct because the images do not depict “any active sexual act” or “penetration.” Neither is required.
Defense counsel requested the court to exclude the following language from the jury instruction defining sexual conduct for purposes of section 311.11, subdivision (a): “... any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, [or] penetration of the vagina or rectum by any object in a lewd or lascivious manner....” The prosecution did not object to the deletion and the court instructed the jury as requested by the defense. Thus, the court instructed the jury that “sexual conduct” was the “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act... performed in a lewd or lascivious manner.”
The jury was allowed to view the images to determine, according to the instructions it had been given, whether they depicted “sexual conduct.” Based on those images, the jury could reasonably conclude that the images depicted “sexual conduct.” There is no requirement under the statute that sexual conduct must involve sexual acts or acts of penetration. Thus the evidence was sufficient to establish that defendant violated section 311.11, subdivision (a).
C. The Motion Picture Association of America Rating
Defendant contends the prosecution failed to prove that the computer images were not derived from a film rated by the Motion Picture Association of America (MPAA) and the trial court failed to instruct the jury sua sponte that films rated by the MPAA are excluded from prosecution pursuant to section 311.11, subdivision (d). His contention is without merit.
Section 311.11, subdivision (d) states: “This section does not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America, nor does it apply to live or recorded telephone messages when transmitted, disseminated, or distributed as part of a commercial transaction.” According to defendant, the prosecution must prove that every image is not a film rated by the MPAA.
The court in People v. Luera (2001) 86 Cal.App.4th 513 concluded an “MPAA rating simply operates as a kind of affirmative defense under section 311.11 only, protecting putatively innocent purchasers of commercial films.” (Luera, at p. 520.) Defendant asks us to reject Luera because the holding of a sister court is not binding on us. We find Luera’s characterization sound.
“When a statute first defines an offense in unconditional terms and then specifies an exception to its applicability, the exception is generally an affirmative defense to be raised and proved by the defendant.” (People v. Lam (2004) 122 Cal.App.4th 1297, 1301.) Section 311.11, subdivision (a) prohibits the knowing possession of pictures, “the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct.” Thus the statute defines the offense in unconditional terms. It is only the last subdivision that creates the exception for films rated by the MPAA. The exception therefore is an affirmative defense to be raised and proved by the defendant. Defendant’s failure to raise the affirmative defense at trial precludes his argument on appeal.
IV. 75 Years to Life in State Prison
There is a stark disparity between the manner in which this case was treated by law enforcement and the district attorney’s office before trial and the effective life sentence ultimately imposed. First, the case languished for years. Nearly two years passed from the time A.C. and Brenna were interviewed on July 5, 2006, in San Joaquin County and the case was investigated in Kern County in 2008.
Second, Department of Justice Agent Sparks testified that he destroyed the thumbnail computer files after about six months because in his experience the images he downloaded were generally considered insufficient to justify a prosecution for possession of child pornography. He explained, “Because it’s been my experience with this type of thumbnail views, that these type of cases are not prosecuted for child pornography. And it’s not feasible for us, as a task force, to save every evidence file that we copy.”
Third, the prosecution had agreed to an early disposition. Defendant went to court “prepared to enter pleas resolving the matter which would have prevented [him] from ever gaining employment in the teaching field, would have required registration as a sex offender, [and] would have saved the court, prosecution and victims the time, expense, inconvenience and embarrassment of a trial.” However, a different district attorney revoked the offer and refiled the charges.
Presumably the plea was predicated on the same factors defendant argued in mitigation. He had no prior offenses. He was between 18 and 20 years old when he committed the offenses. While any lewd contact involving young girls is serious, defendant used no force and did not penetrate their genitals. There is no evidence of violence, bodily harm, threats, or a high degree of cruelty, viciousness, or callousness. Indeed, when the victims told him they would not show him their “privates” or not to touch them, he complied. He touched one victim, if at all, on her hip and another on top of her clothes. He rubbed one victim’s chest under her bikini top as she slept. The most egregious conduct involved Brenna, and if her interview is to be believed, he touched her vagina and she touched his penis. As defendant argued in his sentencing memorandum, the criminal conduct was very unsophisticated.
Yet the sentencing scheme for child molesters is harsh and the applicable statutes give the trial court little discretion to tailor the sentence to the offender and the nature of the conduct. Nevertheless, even the district attorney’s sentencing memorandum recognized that not all of the possible five 15-years-to-life terms were mandatory. He wrote: “As will be explained below, the court is required, by operation of law, to sentence the Defendant to at least one 15 to Life term.”
The life term to which the prosecutor referred was mandated under the so-called “one strike” law set forth at section 667.61. Section 667.61 prescribes a 15-years-to-life term for any person who is convicted of a crime enumerated in section 667.61, subdivision (c), which includes section 288, subdivision (a), under one of the circumstances enumerated in section 667.61, subdivision (e), which includes multiple victims. At first blush, defendant would appear to clearly fit the criteria. But there is another twist that complicates the calculation.
Section 667.61, former subdivision (c)(7) adds a proviso limiting the section 288, subdivision (a) offenses subject to a 15-years-to-life term. Former subdivision (c)(7) reads: “A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.” Thus, if defendant qualifies for probation under section 1203.066, subdivision (c), the court would not be required to impose a 15-years-to-life term.
The prosecutor recognized that section 1203.066 has a special provision to accommodate relatives who become child molesters because of the deleterious effects on the child victims in testifying against family members. He therefore distinguished Jessica, who was not a relative, from the three cousins, who potentially were.
Defendant, however, does not contend that he was entitled to probation pursuant to section 1203.066. He does argue that pursuant to the other conditions set forth in subdivisions (b) through (e) of section 1203.066, a grant of probation would be in the children’s best interest because they are not angry at him, they did not want him to get into trouble, and they would not want him to serve a long prison term; he is amenable to treatment; and he can be ordered to stay away from the victims. And he acknowledges that because Jessica is not a relative he does not satisfy section 1203.066, subdivision (a). But he does not argue that he is a relative of the other three victims and therefore amenable to probation under the express factors set forth in section 1203.066 and thereby excepted from the mandatory 15-years-to-life term under section 667.16.
The analysis, if we were to delve into all of the sentencing nuances presented by amendments to section 1203.066 in 2004, 2005, and 2006, would become even more complicated. The prosecutor conceded that the law in 2005 set forth a rebuttable presumption that defendant was ineligible for probation and that defendant therefore could present evidence to show he was entitled to consideration for probation. As a consequence, the prosecutor did not argue that the 15-years-to-life terms were mandatory for one count involving Nicole and one involving A.C.
The trial court seemed less troubled by the nuances in the various iterations of the law and made no mention of the relative exception recognized by section 1203.066, subdivision (a). The court ruled: “First of all, it is a negative probation report as far [sic] 1203.066. There is language in there about possibilities for probation, but I don’t think that probation is appropriate in this case. The number one reason is the number of counts, the fact that there are multiple victims.” After recognizing the harsh consequences of California’s sentencing laws, the court imposed five consecutive 15-years-to-life terms.
Defendant challenges his sentence on one ground only. He contends the imposition of a 75-years-to-life sentence constitutes cruel and unusual punishment under the federal and state Constitutions. Even his constitutional challenge is limited in scope. As the Attorney General points out, he does not mount a facial challenge to the constitutionality of section 667.61; he does not dispute that section 667.61’s elevated punishment was triggered by his convictions against more than one victim; he does not dispute that the court was required to impose separate terms (§ 667.61, subd. (i)); nor does he contend the trial court lacked discretion to order him to serve the terms consecutively.
Rather, defendant argues that but one of the three factors delineated in In re Lynch (1972) 8 Cal.3d 410, 424 demonstrates that his sentence constitutes cruel and unusual punishment. In his view, the nature of the offense and the offender do not merit a 75-years-to-life term. He relies on a lone concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602 (Deloza) in which Justice Mosk opined that a sentence that is impossible to serve is per se cruel and unusual. Established law is to the contrary.
We have rejected reliance on Justice Mosk’s concurrence. In People v. Retanan (2007) 154 Cal.App.4th 1219, 1231, we wrote: “‘“[N]o opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]” [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion [in Deloza], it has no precedential value.’ Accordingly, there is no authority for defendant’s argument.” We again reject the notion that a sentence of 75 years to life is cruel and unusual because it is impossible for a human being to complete.
Nor do the facts surrounding the commission of the offenses or an individualized assessment of the offender compel a different result. As noted above, we are well acquainted with the factors in mitigation, including defendant’s age, his lack of a criminal record, his training in education, and his willingness to stop at the request of his victims. Subservient to the legislative prerogative to prescribe extremely long terms of incarceration and the trial court’s exercise of discretion in sentencing, an intermediate Court of Appeal’s role is exceedingly limited. Whatever our misgivings about the length of the sentence imposed here, the sentence is not unconstitutional.
Lengthy sentences, indeed far longer than the 75-years-to-life term defendant must serve for multiple sex offenses, have survived constitutional scrutiny and have not shocked the conscience of the reviewing courts. (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278-1282; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1132, 1134-1136; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667.) Here defendant, taking advantage of his familial relationship with three of his young victims and of the trust of the fourth because he was a close family friend, molested seven- and eight-year-old girls on five separate occasions and made them promise to keep it a secret. The Legislature has constructed an exceedingly harsh sentencing scheme to incarcerate child molesters, and given the multiple violations of section 288, subdivision (a) against multiple victims, we cannot say his sentence violates either the state or federal Constitutions.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, J., HULL, J.