Opinion
2d Crim. No. B228178 Super. Ct. No. M427303
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR LOPEZ, Defendant and Appellant.
California Appellate Project, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Luis Obispo County)
Salvador Lopez appeals from an order revoking probation and sentencing him to prison for two years for possession of child pornography. (Pen. Code, § 311.11, subd. (a).) Appellant contends that, at the probation revocation hearing, the trial court admitted out-of-court statements in violation of the hearsay rule and his due process rights. In addition, appellant contends that the evidence is insufficient to show that he violated probation by knowingly possessing child pornography. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
In December 2009 appellant pleaded no contest to one count of possession of child pornography. The court suspended the imposition of sentence and placed him on formal probation. One of the probation conditions was that appellant serve 180 days in county jail. The probation conditions mentioned nothing about his right to possess or use a computer.
The sheriff's department admitted appellant into its home detention program, which permitted him to serve his sentence at home instead of in jail. The terms of the program did not allow appellant "to have any computers or any on-line source in his home." A correctional officer orally informed appellant of this restriction.
On April 18, 2010, appellant's home detention was revoked. The People subsequently filed a felony complaint (case number F449058) charging him with possession of child pornography.
On August 10, 2010, the trial court conducted a combined probation violation hearing in the instant case and a preliminary hearing in case number F449058. The evidence presented by the People at the combined hearing was as follows:
The combined hearing was authorized as " a means of avoiding needless duplication and promoting judicial economy." (People v. Arreola (1994) 7 Cal.4th 1144, 1159.)
On April 18, 2010, after appellant had been on home detention for about two months, correctional officers searched his residence. They seized a laptop computer and computer storage devices. Appellant acknowledged to the officers that he was not allowed to have a computer in his home. He claimed that the computer belonged to his wife and that "they had brought it home to do their taxes."
The computer and storage devices were given to Deputy Sheriff Douglas Scotto, who turned them over to Specialist Jeff Joynt for forensic examination. Joynt did not testify. Deputy Scotto testified that Joynt had said he found pornographic photographs on appellant's computer. The photographs bore a date/time stamp which showed they had been downloaded from the internet on April 18, 2010, about one hour before the arrival of correctional officers at appellant's residence.
Deputy Scotto went to appellant's place of employment and seized appellant's work computer. Joynt also found pornographic photographs on this computer. The photographs bore date stamps of April 15 and 16, 2010.
Deputy Scotto provided 11 pornographic photographs to Dr. Kusumoto, a pediatrician, "for sexual maturity rating." Dr. Kusumoto did not testify. Over appellant's objection, Deputy Scotto testified that Dr. Kusumoto had informed him that "the general age range of all the subjects depicted in [the 11] photographs is approximately 13 to 16 years of age."
Scott Binford testified for the defense. According to Binford, 6 of the 11 photographs had been downloaded from websites that stated on their homepage that they had complied with 18 United States Code 2257. This federal statute requires producers of pornographic material to "ascertain, by examination of an identification document containing such information, the performer's name and date of birth , , , ." (Id., subd. (b)(1).) The statute also requires producers to keep records of this information and make them "available to the Attorney General for inspection at all reasonable times." (Id., subd. (c).) Binford said that, if given additional time, he believed that he would be able to prove that the remaining five photographs had also been downloaded from websites with similar compliance statements. But the trial court said that proof of this fact would not change its decision.
The court held appellant to answer on the felony complaint in case number F449058 and found him to be in violation of probation in the instant case for "failing to obey all laws." In holding appellant to answer, the court declared: "There's at least a strong suspicion to believe that these were minors under 18 years of age, both based on their appearance to the court and on the testimony of Detective Scotto, specifically with regards to Dr. Kusumoto's opinion as to the ages of those young women."
Appellant filed a motion requesting that the court reconsider its finding that appellant had violated probation. The court denied the motion.
Hearsay: Out-of-Court Statements of Specialist Joynt
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] . . . Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subds. (a) & (b).) " 'The underlying rationale of the hearsay rule is that [out-of-court] statements are made without an oath and their truth cannot be tested by cross-examination. [Citations.]' " (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1449.)
Appellant contends that, in violation of the hearsay rule and his due process rights, the trial court erroneously admitted the out-of-court statements of Specialist Joynt that he had found pornographic photographs on appellant's computers. The contention is forfeited because in the trial court appellant failed to object to the admission of Joynt's statements. (Evid. Code, § 353, subd. (a); People v. Alexander (2010) 49 Cal.4th 846, 908.)
Hearsay: Out-of-Court Statement of Dr. Kusumoto
Appellant contends that, in violation of the hearsay rule and his due process rights, the trial court erroneously admitted the out-of-court statements of Dr. Kusumoto that the persons depicted in 11 pornographic photographs were approximately 13 to 16 years of age. Appellant objected to the admission of Dr. Kusumoto's out-of-court statements, but his contention is still forfeited because he did not object on hearsay and due process grounds. (People v. Nelson (2011) 51 Cal.4th 198, 223 [" ' " '[t]he defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable" ' "].) Appellant objected on the ground that Proposition 115 does not encompass an expert's out-of-court statements.
In 1990 Proposition 115 added subdivision (b) to section 872, which provides as follows: "(b) Notwithstanding Section 1200 of the Evidence Code [the hearsay rule], the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted. . . . Any law enforcement officer . . . testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings."
In the trial court appellant objected as follows: "Your honor, I'm going to enter an objection regarding Prop 115 as applies to expert testimony. In effect, what is taking place here is expert testimony beyond the scope of a layperson's knowledge, which I'll concede to be the case, is being presented through a layperson, which completely blocks any cross-examination on the issue. I don't believe that that's what the proposition is intended to do. And I'm powerless to cross-examine on an integral issue in this case for that reason. So I'm entering an objection to introducing expert testimony through a layperson." The court replied: "I understand the objection. It's overruled. I don't believe there's any prohibition to a layperson, a trained police officer, being able to relay hearsay received from an expert."
The trial court was correct. In Hosek v. Superior Court (1992) 10 Cal.App.4th 605, 608, the appellate court rejected the defendant's contention that Proposition 115 "should not apply to the extrajudicial statements of expert witnesses." The Hosek court reasoned: "[O]n the face of section 872 there is no limitation whatsoever on the 'declarants' whose extrajudicial statements may be received in evidence in a preliminary examination. [Citation.] The purpose of this portion of Proposition 115—to streamline the preliminary hearing process—militates against excluding criminalists and other law enforcement personnel from the ambit of 'declarants' whose hearsay statements may be received at preliminary examinations. [Citation.] Accordingly, we decline to exclude expert witnesses from the scope of 'declarants' under section 872." (Id., at p. 609.)
The trial court correctly overruled appellant's objection. Appellant faults the People for using "its Prop. 115 authority at a preliminary hearing, to present evidence [at a probation revocation hearing], including 'expert' opinion evidence, solely through hearsay, and not subject to confrontation." But appellant did not frame his objection in this manner.
Even if the trial court had erroneously admitted Dr. Kusumoto's statements, the error would have been harmless beyond a reasonable doubt. (See People v. Arreola, supra, 7 Cal.4th at p. 1161 [Supreme Court applied harmless-beyond-a-reasonable-doubt standard to erroneous admission of preliminary hearing transcript at probation revocation hearing].) The trial court made clear that its decision was based on its own opinion as well as the opinion of Dr. Kusumoto that the 11 pornographic photographs depict underage persons. The trial court also made clear that, based on the appearance of the persons depicted in the photographs, it would have reached the same conclusion without Dr. Kusumoto's expert opinion. During the hearing on appellant's motion for reconsideration, the following colloquy occurred between the court and defense counsel:
"[Defense Counse]: . . . [T]he only evidence that these models are under 18 is from the opinion of Dr. Kusumoto -
"The Court: Well, there is more than that.
"[Defense Counsel] - - And the court's opinion.
"The Court: Okay. Thank you."
Later on during the hearing, the court stated: "I think unless someone can bring in birth certificates for those models showing me they are under 18, I'd have trouble believing that they are 18 or older." "[S]ome of these people don't even look like they are old enough to have driver's licenses. . . . I don't have confidence in their [the websites'] claim of compliance [with 18 U.S.C. 2257] such that I'm not going to believe my eyes and find that these are not 18-year old women." At the time of sentencing, the court declared: "I remain convinced that you [appellant] are in violation of probation regardless of what [defense counsel] said about Dr. Kusimoto. And despite the efforts of Mr. Binford to establish that these were all 18 year old or older models on all these web sites, I just don't believe that to be the case based on my own eyes and looking at these things."
Sufficiency of the Evidence
At a probation revocation hearing, the burden of proof is by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) "Our trial courts are granted great discretion in determining whether to revoke probation. [Citation.] Such discretion 'implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice.' [Citation.]" (Id., at p. 445.) " 'Absent abuse of that discretion, an appellate court will not disturb the trial court's findings.' [Citation.]" (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) " 'An abuse of discretion will be found only where the trial court's decision exceeds the bounds of reason or contravenes the uncontradicted evidence.' [Citation.] We will reverse for abuse of discretion only if there was no reasonable basis for the trial court's action. [Citation.]" (Garcia v. County of Sacramento (2002) 103 Cal.App.4th 67, 81.) "[W]e give great deference to the trial court and resolve all inferences and intendments in favor of the [order revoking probation]. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)
The statute making it a crime to possess child pornography (§ 311.11, subd. (a)) "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 . . . statute thus requires a real minor and also requires knowledge of minority on the part of the perpetrator." (People v. Kurey, supra, 88 Cal.App.4th at p. 846.)
Appellant contends that the evidence is insufficient to show that the pornographic photographs depict persons under the age of 18 years or that appellant knew they depict such persons. We have reviewed the 11 photographs shown to Dr. Kasumoto (People's Exhibits 2, 3, and 4). We conclude that, even without Dr. Kasumoto's expert opinion, a reasonable trier of fact could conclude by a preponderance of the evidence that the photographs depict persons under the age of 18 years. "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.' " (People v. Kurey, supra, 88 Cal.App.4th at p. 847.)
Appellant has requested that we review the photographs. Appellant asserts, "A review of the images will . . . convince this Court that there is no way to say with any certainty, that any of these images depict a person under the age of eighteen." Neither the standard of proof in the trial court nor the standard of review on appeal requires any degree of "certainty."
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The trial court reasonably inferred that appellant knew that the models were under the age of 18 years based on their appearance and the names of the websites he had visited. The websites included "girlsgotcream.com," "teenstarsonly.com," and "teenburg.com."
It is of no assistance to appellant that the websites represented they were in compliance with federal law. There is no evidence that appellant read these representations and relied on them. Moreover, in view of the youthful appearance of the persons depicted in the 11 photographs, appellant should have known that the websites' representations were unreliable. Furthermore, as the trial court noted, appellant had no reason to "trust the scruples of the people that are running these porn sites."
Disposition
The judgment (order revoking probation and imposing prison sentence) is affirmed.
NOT FOR PUBLICATION.
YEGAN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
California Appellate Project, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General, for Plaintiff and Respondent.