Opinion
H024006.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. RONALD LOFFLAND, Defendant and Appellant.
Defendant Ronald Loffland was convicted at a court trial of two counts each of use of a minor for the production of sexually explicit material for commercial purposes and of furnishing marijuana to a minor. Defendant challenges the sufficiency of the evidence on appeal.
FACTS
Evidence at the November 16, 2001, court trial was based on the July 9, 2001, preliminary hearing and motion to suppress evidence transcripts. Santa Cruz County Sheriffs Deputy Todd Liberty testified that following a complaint from a teenage girl that defendant had been taking photographs of her and posting them on the Internet, Liberty and other officers executed a search warrant at defendants house in Santa Cruz County searching for child pornography. The deputies found a computer system in the house with eight separate websites on the Internet and a CD-ROM disk which contained over 1,700 images of naked prepubescent girls engaged in sexual intercourse with adult males. There was also a small, silver digital camera with a detachable screen, a modeling contract signed by both 15-year-old victim 3 and defendant that was post-dated September 30, 2004, a Tupperware container containing over an ounce and a half of marijuana buds, a gram and a half of methamphetamine, a gold-colored metal marijuana pipe, 2.6 grams of hashish, and a Baggie of psilocybin mushroom stems.
Liberty interviewed 15-year-old victim 1 on the same day as the search warrant was executed, 14-year-old victim 2 on January 14, victim 3 on January 15, and 13-year-old victim 4 at an unspecified time.
Victim 1 told Liberty she had been introduced to defendant by a friend and that defendant photographed her at his house for pay and that he said he would post the photos on the Internet for sale. Victim 1 told defendant she was 15 and a ninth grader in high school. The photographs showed victim 1 in "all stages of undress[], "including complete nudity, touching herself on the breasts and on the vagina. Defendant provided clothing for her to wear and put her in different positions throughout his home, on his bed, and in his shower. Victim 1 estimated she made $ 500 for posing for defendant between September 2000 and January 11, 2001. Sometimes others were present when victim 1 was being photographed. Victim 3 and victim 1 were photographed together.
Defendant used a gray digital camera with a screen that could be rotated so the photographer could see the image being taken. Victim 1 saw the photos on defendants personal computer after he downloaded the pictures from the camera. She did not see photographs of herself on the Internet. On six or seven occasions when victim 1 was being photographed, defendant provided her with marijuana from a Tupperware container from his bedroom which she smoked out of a small metal pipe similar to the one found in the search of defendants home. Victim 1 believed the marijuana was adulterated with another controlled substance like methamphetamine or cocaine because of the odd taste and the feeling she got from smoking it.
Sergeant Ervin Joseph Heartsner described the computer as having "six drivers in it which are 40-gigabyte hard drives. [P] . . . [P] . . . Its relatively large." Detective Liberty described it as having "numerous peripheral attachments to the computer. . . . I recall scanners and printers and technical-type journals, numerous different types of circuit boards and attachments for the computer or computers. [P] There were attachments for the digital cameras which would link them to the computer." Sergeant Heartsner found 1,319 images of victim 1 in a file with her name on a CD-ROM labeled "myamateurs.com." Of these photographs and one which was from the desk-top of the computers operating system, 15 were admitted into evidence at the preliminary hearing. They showed victim 1 touching her breasts and vagina, mostly "in some sort of a clothed capacity, either with panties or with a shirt on," although "there are genitals themselves or there is some pubic hair apparently visible." The court found that the photographs were for the purpose of stimulating sexual desire because of the poses in the photographs, and because they exhibited the "genital portions" of victim 1. The court found that 13 of the photos met the statutory requirements.
Defendant also hired 14-year-old victim 2 to pose for photographs at $ 50 per hour with clothes on, $ 100 per hour topless, and $ 150 per hour fully nude. She posed 15 to 20 times and was paid $ 750. Defendant told her he was going to post the pictures on the Internet for profit. Victim 2 first met defendant at a market in September or October 2000 and she told him she was 14 years old and a student in high school. Victim 2 primarily posed clothed, but during the last session with defendant in November 2000 she took off her clothes. Victim 2 said she did touch herself in those photographs. Each time victim 2 posed for defendant at his home, he provided her with marijuana and a small metal pipe to smoke it. Victim 2 was sure the marijuana had been adulterated with some other controlled substance because it was different from other marijuana. No photographs of victim 2 were introduced into evidence.
Victim 3 posed nude for defendant at his request and she knew the photographs were not intended for scientific or educational purposes but that defendant was posting them on the Internet for his personal profit. However, victim 3 never saw pictures of herself on the Internet. Defendant also offered to pay victim 3 a commission to recruit other friends to pose nude for him. Victim 3 signed a contract agreeing to release her photos for sale on the Internet and defendant agreed not to sell the photos until she turned 18. At the time, defendant knew victim 3 was only 15 and a high school student. Defendant offered victim 3 the same pay scale as victim 2 and she posed nude for him four times and was supposed to earn $ 1550 for it, although at the time of the preliminary hearing, defendant still owed her $ 650. Defendant supplied victim 3 with marijuana each time she came to the house. She thought it had been adulterated; she smoked it with victim 1 and victim 4 and a man. No photographs of victim 3 were admitted into evidence. Once victim 3 asked defendant to drive her to Los Angeles if she paid the expense. He offered to do so if she "gave him head, " which she understood to mean oral copulation, but she refused.
Thirteen-year-old victim 4 admitted she smoked marijuana supplied by defendant at his home and that defendant took photographs of her fully clothed with her arms around victim 3 on one occasion. Defendant offered victim 4 the same pay scale for nude and semi-nude photographs but she refused the offer.
The photographs of victim 1 were collectively admitted in evidence at the preliminary hearing as Peoples exhibit No. 2, A through O. The court found defendant guilty of employing a minor to perform prohibited acts, victim 1 in count 1 and victim 3 in count 5, (Pen. Code, § 311.4, subd. (b), hereafter § 311.4(b)), and furnishing marijuana to a minor, victim 1 in count 2 and victim 2 in count 4, (Health & Saf. Code, § 11361, subd. (b)). Defendant was sentenced to 36 months on probation on condition that he serve 210 days in the county jail, pay a fine and restitution fine, participate in educational or therapeutic programs, and abide by drug treatment, search and seizure, and other conditions. This appeal ensued.
ISSUES ON APPEAL
Defendant contends there was insufficient evidence of sexual conduct to support the finding of guilt on counts 1 and 5; and there was insufficient evidence that defendant provided marijuana to a minor to support the conviction on counts 2 and 4.
SCOPE OF REVIEW
"In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 509, 896 P.2d 119.) " In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, 885 P.2d 887.) "We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We simply consider whether " any rational trier of fact could have found the essential elements of [defendants] crime beyond a reasonable doubt. " [Citations.] [Citation.] Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the [jurys] verdict, we will not reverse. [Citation.]" (People v. McCleod (1997) 55 Cal.App.4th 1205, 1221.)
SEXUAL CONDUCT
Defendant claims that the evidence is insufficient to support count 1, which names victim 1 as the victim, and the evidence to support count 5, which names victim 3, "is nonexistent." As to count 1, defendant asserts that because none of the photographs of victim 1 show her "engaging in sexual activity with herself [or] with another person . . . the question is whether the evidence of nudity . . . constitutes evidence with sexual conduct." (Original italics.) In addition, "there is no evidence that the photographs taken of the person identified as [victim 1] were taken for any commercial purpose. Although one or more of the minors apparently believed that the photographs might be exhibited at some future date, the record is utterly devoid of evidence to suggest that they were sold, distributed, traded or anything of the like." As for count 5, defendant discounts Deputy Libertys testimony of victim 3s activities and contends that since there were no photographs of victim 3 introduced into evidence to establish that the photographs of her depicted "sexual conduct" as required by the statute, there was no evidence to support the conviction.
Section 311.4(b) provides: "Every person who, with knowledge that a person is a minor under the age of 18 years, . . . knowingly . . . employs, . . . a minor under the age of 18 years, . . . to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including, . . . any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals, for commercial purposes, is guilty of a felony . . . ."
"Sexual conduct" means actual or simulated "sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288 [lewd or lascivious acts upon a child], or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct." ( § 311.4(d)(1).)
There are six factors "for a fact finder to consider when determining whether there has been a prohibited exhibition of a minor childs genitals, pubic, or rectal area . . .: [P] 1) whether the focal point is on the childs genitalia or pubic area; [P] 2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; [P] 3) whether the child is in an unnatural pose, or in inappropriate attire, considering the age of the child; [P] 4) whether the child is fully or partially clothed, or nude; [P] 5) whether the childs conduct suggests sexual coyness or a willingness to engage in sexual activity; [and] [P] 6) whether the conduct is intended or designed to elicit a sexual response in the viewer. [P] With the exception of factor No. 6, which is a required element of a Penal Code section 311.4 violation, a trier of fact need not find that all of the first five factors are present to conclude that there was a prohibited exhibition of the genitals or pubic or rectal area: the determination must be made based on the overall content of the visual depiction and the context of the childs conduct, taking into account the childs age. [Citations.]" (People v. Kongs (1994) 30 Cal.App.4th 1741, 1754-1755.)
In the instant case, the trial court determined that the preliminary hearing and motion to suppress transcripts established that defendant was guilty beyond a reasonable doubt of section 311.4(b) in regard to victim 1 and victim 3. As to victim 1, the transcripts and photographs with which we have ordered the record augmented (Cal. Rules of Court, rule 12), establish that she was posed in sexually suggestive settings (bathroom and bedroom), that the poses were unnatural in that she was touching her vagina and breasts, that she was partially clothed or nude and that her breasts and pubic hair were visible in some pictures, and that the poses suggested sexual coyness or a willingness to engage in sexual activity. The court correctly found that the conduct was intended or designed to elicit a sexual response in the viewer.
As to victim 3, although no photographs of her were entered into evidence, she described her conduct to Deputy Liberty. Deputy Liberty was the investigating officer who testified to victim 3s statements pursuant to section 872 which allows "sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted." ( § 872, subd. (b).) Victim 3s statements were the statements of a percipient witness to the acts described. Victim 3 stated she was paid to pose both clad and unclad for defendant. This was corroborated by victim 1, who stated she posed with victim 3. Victim 4 also admitted posing with victim 3 with their arms around each other. Victim 3 thought it might be illegal to pose nude or partially clothed for pay so defendant could post the pictures on the Internet until she was an adult, so defendant agreed he would not sell the photos until she was 18 years old. This evidence supports the inference that defendant posed victim 3 in such a way that her conduct was intended or designed to elicit a sexual response in the viewer. Substantial evidence supports the conviction for violations of section 311.4(b).
Defendant also complains there is insufficient evidence defendant made the photographs for commercial purposes. The "for commercial purposes" element of section 311.4(b) does not require proof that a defendant intended to profit financially from the distribution of pornographic images. (People v. Cochran (2002) 28 Cal.4th 396, 402-403 (Cochran).) In Cochran, the element was established by evidence that defendant produced videotape in which his nine-year-old daughter engaged in 11 episodes of escalating sexual conduct, that he used various lighting techniques to enhance the quality of the video, and that he posted still images from the video on the Internet with intent to trade pornography with others. (Id. at pp. 399, 405.) The defendant need only intend at the time that the image of child pornography is prepared and produced to trade the pornography for a commercial purpose at some point in the future. (Id. at p. 406.)
Since defendant had a complicated computer system with numerous peripheral attachments, two large hard drives and other equipment, paid victim 1 and victim 3, had victim 3 sign a contract releasing her photographs to be sold, offered victim 3 a commission for soliciting her friends to pose for him for pay, and told victim 1, victim 3, victim 2, and victim 4 that he intended to post the photographs on the Internet for profit, substantial evidence supports the trial courts implied finding that defendant made the photographs for a commercial purpose.
PROVIDING MARIJUANA
Defendant also complains that the evidence that the minors smoked something they believed to have been marijuana, but that was "different" from the marijuana they had smoked before, "suggests that the substance smoked by the minors at [defendants] house was not marijuana." (Original italics.)
It is a felony for "every person 18 years of age or over [to] furnish[], administer[], or give[], or offer[] to furnish, administer, or give, any marijuana to a minor 14 years of age or older . . . ." (Health & Saf. Code, § 11361, subd. (b).) Victim 1 and victim 2 were not testifying as expert witnesses on the identification of the substance defendant provided to them. "If a witness is not testifying as an expert, [her] testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [P] (a) Rationally based on the perception of the witness; and [P] (b) Helpful to a clear understanding of [her] testimony." (Evid. Code, § 800.) The descriptions of victim 1 and victim 2 of their familiarity with the appearance and effects of marijuana when they smoked it on occasions well before defendant produced the pipe and drug for them to smoke at his house, the appearance of the substance defendant produced from a Tupperware container he kept in his bedroom which, the girls told Deputy Liberty looked like marijuana, the pipe which he provided for them to smoke from, and the effect of the drug on their persons are rationally based on the perception of the witnesses and helpful to a clear understanding of their testimony.
In addition, Deputy Liberty testified that the substance in the Tupperware container, the container, and the gold-colored pipe were consistent with the girls descriptions of the drug, the pipe which delivered the drug, and the place and container where defendant stored it. Deputy Libertys opinion that the contents of the Tupperware container were marijuana was given as an expert witness. "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [P] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [P] (b) Based on matter (including his special knowledge, skill, experience, training, and education) . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, . . ." (Evid. Code, § 801.) Deputy Liberty worked on the Sheriffs Office marijuana enforcement team for two and a half years; had over 200 hours of formal training in the area of marijuana cultivation, possession of marijuana for sale; served over 70 search warrants for marijuana cultivation and sales; interviewed numerous sellers, growers, and users of marijuana; and eradicated thousands of marijuana plants grown both indoors and outdoors. Deputy Libertys expert opinion and the girls lay opinion testimony constitute substantial evidence that the substance that defendant furnished to them was marijuana.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, J., Wunderlich, J. --------------- Notes: Further statutory references are to the Penal Code unless otherwise stated.