Opinion
A162939
04-10-2024
THE PEOPLE, Plaintiff and Respondent, v. IAN VICKREY, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 51924711
STEWART, P.J.
Ian Vickrey appeals from convictions of three counts of committing a lewd act on a child under age 14. He contends that structural error occurred when administrative errors resulted in an excused juror being seated and a selected juror being excused, and that the trial court erred in resolving the situation by seating one of the alternates. Additionally, Vickrey challenges the trial court's admission of pornographic evidence and its instructions on lesser included offenses. Finally, to the extent any of his claims were forfeited by defense counsel's failure to raise appropriate objections at trial, Vickrey argues he received ineffective assistance of counsel. We affirm.
BACKGROUND
I. Factual Background
A. The Offenses
1. December 7, 2018-Jane Doe 1
On December 7, 2018, Jane Doe 1 and Jane Doe 2, both 11 years old, attended a sleepover at Vickrey's house for his daughter's 11th birthday along with three other girls. After watching a movie in the living room, the girls went to sleep on air mattresses in the front room, except for Jane Doe 2, who had fallen asleep on the living room couch.
Jane Doe 1 testified that she woke up during the night and saw Vickrey "standing over" her. No one else was awake. Vickrey knelt down and touched Jane Doe 1's vagina, under her underwear, for three to five minutes, then touched her breasts on top of her pajama shirt for a similar amount of time. Jane Doe 1 was "freaking out and frozen"; she pretended to be asleep, staying still and keeping her eyes "just barely open." When Vickrey stopped, he went into the kitchen, then to the living room and, she thought, back to the kitchen. At this point, Jane Doe 2 walked in from the living room, told Jane Doe 1 that "he was acting really weird" and lay down between Jane Doe 1 and the other girl sleeping on the mattress. Jane Doe 1 thought Jane Doe 2 meant "it was weird he was just walking around" but she wasn't completely sure, and she was worried that Jane Doe 2 might have seen Vickrey touch her. She thought Jane Doe 2 fell asleep.
Vickrey came back into the front room and touched Jane Doe 1 again, this time touching both her vagina and her breasts under her pajamas. Jane Doe 1 was still "frozen" and hoped Jane Doe 2 was asleep. Jane Doe 1 did not want Jane Doe 2 to know because she was embarrassed and did not want Jane Doe 2 to say anything to anyone. When Vickrey stopped touching Jane Doe 1, he went to the computer room. Jane Doe 1 could not see the computer screen from where she was, but she could see from the light that the screen was on. She then saw Vickrey go upstairs.
Jane Doe 1 did not tell anyone what Vickrey had done. She was "mainly embarrassed" but also "hoping that it didn't happen."
2. December 7, 2018-Jane Doe 2
Jane Doe 2 testified that she fell asleep on the couch in the living room while watching the movie. When she woke up, the other girls were in the front room and it was dark. Jane Doe 2's onesie had been unzipped and Vickrey was touching her vagina under her underwear and her chest. Jane Doe 2 was scared. She did not get up because she was "trying to figure out what was going on," and she pretended to be asleep. After "[m]aybe five minutes," Vickrey got up and went to the kitchen. Jane Doe 2 went to the front room and asked Jane Doe 1, who was the only one awake, if she could lie on the mattress. She told Jane Doe 1 that Vickrey was acting weird and then fell back asleep. Jane Doe 2 did not tell anyone what had happened because she "didn't know what had happened" and "couldn't really comprehend it."
3. August 4, 2019-Jane Doe 1
Jane Doe 1 went to Vickrey's house for another sleepover on the night of August 3, 2019. She had continued to spend time at the house after the December 2018 incident because she and appellant's daughter were best friends and it would have seemed "odd" if she did not. She was not worried about anything bad happening on August 3 because nothing had happened since the birthday party. The two girls went to sleep in the bed in Vickrey's daughter's bedroom. Jane Doe 1 woke up in the night and saw Vickrey standing over her. She "was frozen again," remembering what had happened at the sleepover. Vickrey touched her vagina and her breasts, directly on her skin. She pretended to be asleep, not moving and opening her eyes only a little bit. When Vickrey stopped touching her, Jane Doe 1 got up and walked past him into the bathroom, pretending she was "sleepwalking or something." They did not say anything to each other. Jane Doe 1 locked the bathroom door. She heard Vickrey's footsteps following her and heard him outside the door. After about five or ten minutes, she heard his footsteps walking away, waited another minute to be sure he was not there and went back to the bedroom. She woke Vickrey's daughter and said she wanted to go home but did not explain why. Jane Doe 1 called her mother, who came to pick her up, and told her mother what had happened both that night and at the December sleepover. She had not told anyone before this because she did not want to ruin her friendship with Vickrey's daughter and she was "hoping [she] was wrong."
B. The Investigation
1. Initial investigation
Jane Doe 1 was interviewed at the Children's Interview Center on August 5, 2019. A video recording of the interview was played for the jury.Detective Joseph Nunemaker observed the forensic interview and subsequently personally conducted a follow up interview with Jane Doe 1, during which she disclosed that Vickrey touched her twice on December 7, 2018. Due to a technical problem with the audio recording of this interview, Nunemaker testified to the details Jane Doe 1 related about what happened that night.
In this interview, Jane Doe 1 said she was "pretty sure" Vickrey "did the same thing" to his daughter and another girl at the December sleepover because she saw him "kneeling down in front of" each of those girls.
Upon learning that five other girls had been present at the December 2018 sleepover, Nunemaker determined it was necessary to interview the others to verify whether they were also victims. Jane Doe 2 was interviewed at the Children's Interview Center on August 12, 2019, and disclosed Vickrey touching her on the night of the sleepover. A video recording of the interview was played for the jury. When Nunemaker contacted Jane Doe 2's mother to arrange the interview, he did not tell her any of the details that Jane Doe 1 had disclosed. Jane Doe 2 testified that she did not know what she was going to be asked about at the interview and did not know that anyone else had had a similar experience to hers or that Vickrey was being investigated. She was honest with the interviewer and told her what had happened.
In contrast to both victims' testimony that when Jane Doe 2 came into the front room she just said Vickrey was acting weird, Jane Doe 2 said in her forensic interview that she told Vickrey's daughter and another girl what had happened, but they were "half-asleep, so they didn't really say anything," and it was never discussed after that.
2. Search of Vickrey's Computer
Vickrey was arrested on August 5, 2019. Subsequently, the computer in the office on the first floor of his home was seized pursuant to a search warrant. Darryl Holcombe, a senior inspector with the Contra Costa County District Attorney's office, conducted a forensic extraction of the data on the computer. Holcombe testified at trial as an expert in digital forensics and forensic investigation of cases involving child pornography.
Holcombe found thousands of "LNK files" that were connected to user "Ian" and were password protected. He explained that a LNK file is created by a Windows computer to make it easier for a user to find the file. A LNK file does not contain the actual file but rather metadata, information about the file, including the file path that "points the operating system to the location of that physical file."
Some of the LNK files were video files whose titles contained key words that were "indicative of child pornography possession" or "a sexualized interest in minors." For example, Holcombe testified that "Lolita," a term that appeared in the computer's search history, signifies female child pornography and is a "common search term" used on "peer-to-peer file sharing networks, the dark web which [sic] individuals are looking for child pornography." Some file names included "PTHC," which stands for "preteen hardcore" and Holcombe described as a "tag" added to the file name "so that users, generally on a peer-to-peer file-sharing network or on the dark web can try to find content that they're interested in. Other file names included "r@ygold," a "pseudonym for the Internet king of child porn" and a tag added to files for child pornography. Asked if photos or videos on a "mainstream adult pornography site" would include r@ygold or PTHC in their names, Holcombe testified that he had never seen either of these on any pornography website indexed by Google and had never seen a file with these tags that was not child pornography.
Holcombe testified that "[p]eople who have child pornography don't want other people to know that they have child pornography" and one of the techniques he had seen was for files to be kept "buried" within multiple layers of folders. A trial exhibit listing 27 of the LNK files found on Vickrey's computer showed that the file path for each started with the same three identifiers ("E:\Smile\Vidz\ . . ."), which Holcombe explained referred to a drive, a folder and a subfolder.
Holcombe found 20 to 30 photos that he associated with child pornography or child erotica in a portion of the computer's hard drive called "unallocated space," indicating the files had been deleted. He also found approximately 10 videos involving child pornography or child erotica. Exhibits 22 through 30 were some of the photos he found. Based on his review, background, training and experience, Holcombe stated his opinion that the females in the photos were minors.
Holcombe explained that if a user deletes a file, it is not really deleted, just removed from the "master file table" so the operating system thinks it is no longer there. These deleted files remain in the unallocated hard drive space and a marker on the file notifies the operating system that it can be overwritten if space is needed for newer files.
Holcombe's analysis of data showing actions taken on the computer showed that a user accessed a file path on the E drive and a folder ending in "REZN backslash" on August 4, 2019, at "1:42 and 52 seconds A.M." The computer created a log file for the Microsoft Xbox program at "1:00 A.M. and 34 seconds" on December 8, 2018. Asked if this also indicated a user interaction, Holcombe said he did not know why it created the log file but it related to Xbox.
C. Defense Case
Vickrey testified that the pornography on his computer dated to his time in the Navy, which began when he was 19 or 20 years old. He and his shipmates would trade compact discs (CDs) containing images and videos to copy onto a computer hard drive, then go through the material on their time off once a deployment was underway. He would delete some images and keep others. Vickrey testified he had not looked at the images since he retired from the Navy in 2012. When he replaced the computer he had then, these images were part of the "overall data set, documents, movies, music" transferred to the new one. Asked how much time he spent per week accessing the pornography files on his computer from late December 2018 to August 2019, Vickrey responded, "zero." Asked if he had any sexual fetishes, Vickrey acknowledged that he had five or six videos about adult midgets that he had watched with his wife. He testified that he had never found images of or actual young girls attractive and had never intentionally or knowingly downloaded child pornography.
Vickrey denied touching Jane Doe 1 or Jane Doe 2 as they described. He testified that during the sleepover in December 2018 he was either in his bedroom upstairs or in the office with the door closed, playing World of Warcraft. Around midnight, his wife asked him to go downstairs and have the girls settle down for bed; after telling the girls to settle down, he got some water from the kitchen, went to his office and looked at Facebook for about 10 minutes, then went back up to bed and did not get up during the night.
Vickrey remembered the night in August 2019 "fairly clear[ly]." He drank about four beers that night and was feeling the effects of the alcohol "moderately." Jane Doe 1 was with his daughter when he got home from work and he waved to them but did not otherwise interact with Jane Doe 1 that night. Around 9 p.m., Vickrey began to play World of Warcraft on the computer in his office; he continued for about four hours, leaving the office only to use the restroom, then went to bed and did not get up during the night. He did not know if his daughter and Jane Doe 1 were awake when he went to bed or what room they were in, and he did not know Jane Doe 1 left during the night.
Vickrey was asked on cross examination about three photographs found on his computer that he had taken during a vacation in Mexico. All were of girls he did not know, who happened to be at the resort, and he had not asked permission to take the photographs. He testified that he did not believe he downloaded the LNK files listed on exhibit 21 (the exhibit listing files with names suggesting child pornography).
Vickrey was questioned about a portion of his police interview in which the detective asked if he wanted to write an apology letter to Jane Doe 1, Vickrey said, "I wouldn't know what to write other than I'm sorry," and when the detective asked what he would say he was sorry for, Vickrey replied, "[f]or touching her that way. I wouldn't even know how to explain it." Vickrey testified that he "was answering that, if I had touched her, that I would feel the need to apologize." Vickrey acknowledged that when the detective asked during the interview whether he believed Jane Doe 1, Vickrey said," 'I have to. I don't have any evidence to dispute or refute it.'" Vickrey testified that he did not mean his response as a confession; he intended to "convey [his] thought process," which was that given what he was told about Jane Doe 1's allegations, he "couldn't say, No, she didn't say that."
II. Procedural Background
Vickrey was charged with three felony counts of committing a lewd act on a child (Pen. Code, § 288, subd. (a)), count 1 alleging the offense against Jane Doe 1 on December 7, 2018, count 2 alleging the offense against Jane Doe 2 on that date, and count 3 alleging the offense against Jane Doe 1 on August 4, 2019. Each count alleged enhancements for multiple victims. (Id., § 667.61, subds. (b)/(e) and (j)(2).)
A jury found Vickrey guilty on all counts and found the enhancement allegations true. He was sentenced to a prison term of 25 years to life.
This timely appeal followed.
DISCUSSION
I. Vickrey Forfeited His Claims of Improper Removal of a Juror.
As we will describe, due to administrative errors, one of the individuals who had been selected to serve as a juror was mistakenly told he had been excused while a prospective juror who had been excused by a defense peremptory challenge was mistakenly seated and sworn as a trial juror. When the mistakes were discovered, the trial court removed the improperly seated juror and substituted one of the two sworn alternates pursuant to Penal Code section 1089. Vickrey now contends that proceeding to trial without the juror who had been selected by the parties during voir dire was structural error requiring reversal of his convictions. Alternatively, he argues that the trial court erred in substituting an alternate for the juror who had been selected but mistakenly excused.
A. Background
Pursuant to protocols followed by the trial court due to the Covid-19 pandemic, jury selection was conducted with prospective jurors brought into the courtroom in groups of 19 at a time. At the conclusion of voir dire for each of the first two groups, the prospective jurors remaining after excuses for cause and peremptory challenges were instructed to return on April 5, 2021. At the conclusion of voir dire for the third group, 12 jurors were selected to serve as trial jurors, two were selected as alternates and the remaining prospective jurors were excused. The four trial jurors in court at that point were sworn, as were the two alternates. The court instructed the clerk to call the other eight who had been selected as trial jurors and inform them they were required to appear on April 5.
By the time the second alternate juror was selected, the defense had exhausted its last peremptory challenge.
The trial court told counsel it was inclined to have the final group of 19 prospective jurors remain on telephone standby in case of any issues arising with the selected jurors appearing as ordered on April 5. Defense counsel expressed some concern about "a potential issue" with having sworn some of the jurors and the court responded that it had the jurors sworn "for today's purposes" but in the court's view "jeopardy does not attach" and once the full jury was present, the court would repeat the oath with them all.
On the morning of April 5, the court set aside the oath previously taken from the six jurors and the full jury of 12 was sworn, followed by the two alternates. The court instructed the jury and adjourned for the lunch recess.
That afternoon, the court informed the parties that one of the jurors they selected "may have been called off and excused by our clerk's office in error" and at least one of the sworn jurors had been "excused by one or both of you." It was determined that one of the sworn jurors, L. (No. 39), had been peremptorily challenged and should not have been on the jury, and that a juror who had been selected to serve, F. (No. 50), was not present. The court assumed that F. had been told by mistake that he was excused and L. had been told by mistake to come in. F. was contacted and confirmed that he had been told on April 2 that he was excused.
At this point the court said it planned to excuse L., who could not remain on the jury because of the peremptory challenge, and set aside the swearing of the jurors' oath. The court suggested two options: Bring F. back if he was able to appear by the following morning, or excuse F., substitute one of the alternates for L.'s seat and proceed with one alternate. Defense counsel asked the court to "make all attempt to contact [F.] and have him attend court as quickly as possible." L. was excused.
Upon learning F. would return to court at 3:30 p.m., the court stated it planned to have the jury sworn again, with F. included, then repeat the preliminary instructions it had delivered. Defense counsel told the court, "I need [to] look into this over the next 40 minutes. I'm concerned that jeopardy has already attached; however, I'm not prepared to argue that at this point." Pointing out that F. was called because defense counsel requested that the court not substitute an alternate in his place, the court asked defense counsel if he was requesting that L. be called back, and counsel said he was not.
After a brief recess, the court told defense counsel that based on its preliminary research on the jeopardy issue, "I don't think we get to have it both ways, where I seat [F.] on the jury, given that you mentioned jeopardy, given that we've swor[n] in 12 today....I don't think I can undo, at this point, when we had 12 . . . this morning, the swearing in of the jury and jeopardy attaching. And I'm not willing to risk that on appeal if we get to that point. So it is what it is. No one caught the fact that [F.] was not in our box of 12 this morning. I didn't catch it. You didn't catch it. [The prosecutor] didn't catch it. No one seemed to catch that [L.] was here instead of [F.] and that she was sworn in with our 12." After confirming that defense counsel did not want L. on the jury and stating its view that it had to give effect to the peremptory challenge, the court continued: "[W]e're going to proceed with one of the alternates getting subbed in rather than [F.] . . . given that you mentioned double jeopardy. · I'm not even sure that is something you can even waive at this points Arguably, you could. · I'm certainly not going to take that chance since no one caught, unfortunately, that [F.] was not here when I swore in the jury. · I'm going to act as if that was jeopardy attaching this morning with the full 12 and then the alternates. · And we have [L.] off, and we will bring in one of the alternate jurors. · I think the fact that [F.] was not present when we swore in the 12 precludes him from coming into the jury now, and we'll have to operate with one less alternate than we prefer." The court noted that the alternates were seated after the defense had exhausted its peremptory challenges and that the defense "agreed that we would go forward without [L.] by virtue of their peremptory challenge."
Defense counsel stated, "First off, I agree with the Court's analysis that jeopardy is attached and would be inappropriate to have [F.] return and act as a juror at this point." Referencing his "limited research in the last 20 minutes," counsel argued that under section Penal Code section 1089, concerning substitution of alternates, Vickrey's "due process rights are implicated by the fact that good cause does not exist to replace [F.] with one of the two alternate jurors. [¶] In the instant situation, at a minimum, a mistrial is required and, quite frankly, it may be a bar to future prosecution under both the federal and state constitutions; however, I've not had enough time to fully analyze that." Defense counsel reiterated that "having [F.] return would be inappropriate" and "the question, again, becomes whether or not [Penal Code section] 1089 allows for the replacement of . . . I'm not even sure at this point [F.]-"
Penal Code section 1089 provides in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
The court interjected, "It's [L.] She was who was sworn in our 12. You said you want your peremptory challenge given effect, you're not willing to stipulate to her being on the [jury]. I'm willing to honor that. It seems to me that's good cause to get her off the jury and put [one] of the alternates in. Why is that not good cause?" Counsel stated that in the "limited cases I could look at during the short period of time, I couldn't find a case which indicated that the substitution of an incorrect juror after jeopardy has attached is good cause." The court responded that an alternate would be a "legal juror" as they had been validly selected and there was "no cause why they could not serve." Defense counsel argued that, unlike "a properly empaneled juror becoming sick," the juror he challenged "should never have become part of the jury in the first place." The court said, "Right. So we either try the case with that juror or we try the case with 11. You're not willing to go with that juror, which I understand. You're not willing to go with 11, which I understand. So the fact that a wrong juror was sworn at that time doesn't mean that the prosecution is further barred because we have two proper alternate jurors, one of which we can bring in by law." Defense counsel stated, "I cannot offer nothing [sic] more at this point."
After summarizing the situation and again noting that "[d]efense counsel agrees with me that we can't undo the swearing of the jury and seat [F.]," the court found good cause to excuse [L.] and substitute one of the alternates, to be chosen by lot. Juror No. 72 became the twelfth trial juror and the case proceeded with one alternate.
B. Vickrey Forfeited His Argument That Structural Error Occurred When a Properly Selected Juror Was Removed from the Jury.
"A criminal defendant has a constitutional right to an impartial jury, and the pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law." (People v. Wilson (2008) 44 Cal.4th 758, 822.) Vickrey argues that by substituting an alternate pursuant to Penal Code section 1089 rather than putting F. on the jury, the trial court proceeded to trial "without jurors vetted and selected by the parties," a structural error requiring retrial. Vickrey maintains he did not select the alternate who was substituted onto the jury, as the defense had no remaining peremptory challenges when this juror was selected, and that the alternate "was substituted in for [F.]" "despite [Vickrey's] protests."
As described above, Vickrey initially asked the court to "make all attempt to contact [F.] and have him attend court as quickly as possible in this matter." After F. was summoned, however, defense counsel raised the double jeopardy issue and expressly told the court, "First off, I agree with the Court's analysis that jeopardy is attached and would be inappropriate to have [F.] return and act as a juror at this point." Defense counsel later reiterated that "having [F.] return would be inappropriate."
" 'As a general rule, a defendant may properly raise in this court a point involving a trial court's allegedly improper discharge of a juror only if he made the same point below.' [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 656.) The same general rule applies to excusing a juror. (Ibid.; People v. Gutierrez (2009) 45 Cal.4th 789, 805.) Here, defense counsel affirmatively agreed with the court's conclusion that it would be "inappropriate" to seat F. on the jury.
In his reply brief, Vickrey argues that the People misconstrue the record in asserting that his claim was "waived by trial counsel's doublejeopardy argument," which Vickrey maintains was "no more than trial counsel's effort to protect the record insofar [as] referencing all objections previously discussed by the parties at trial." Vickrey selectively quotes defense counsel's statement that he "agree[d] with the Court's analysis that jeopardy is attached," omitting the critical remainder: "and would be inappropriate to have [F.] return and act as a juror at this point." Counsel went on to suggest that "good cause does not exist to replace [F.] with one of the two alternate jurors" and stated that "a mistrial is required" and "it may be a bar to future prosecution," then reiterated that "having [F.] return would be inappropriate." It appears that Vickrey, not the People, misconstrues the record: Defense counsel clearly stated that it would not be appropriate to seat F.
The trial court corrected defense counsel's comment about replacing F. with an alternate, saying it was L. who was replaced because the defense had peremptorily challenged her and was not willing to stipulate to having her on the jury. The court and counsel continued their discussion of whether L.'s situation was good cause for substitution under Penal Code section 1089.
Defense counsel did object to substituting one of the alternates when L. was excused. Vickrey's argument on appeal, however, is not that the trial court erred in substituting the alternate for L.; he argues that he was deprived of his right to have F. on the jury. Vickrey attempts to conflate the two issues by arguing there was no good cause for substituting the alternate for F. and no reason to "remove [F.] from the jury," but, as the trial court noted, that is not what occurred. F. was selected as a trial juror but mistakenly not seated. He was not removed from the jury; he was excused without ever having been sworn as a juror. The alternate was substituted for L., who defense counsel agreed had to be removed.
In these circumstances, it is clear that Vickrey forfeited the argument that the trial court erred in excusing F.
C. Vickrey Has Not Shown Ineffective Assistance of Counsel.
Vickrey argues that if we conclude this issue was forfeited, he received ineffective assistance of counsel. We disagree.
"When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Vickrey asserts that any failure of defense counsel "to further particularize or articulate objection was not tactical" because it was "clear that [Vickrey] was objecting to the substitution of [F.]" The full extent of Vickrey's argument is that when asked if he would agree to proceed without F., defense counsel asked the court to "make all attempt to contact [F.] and have him attend court as quickly as possible in this matter."
As we have explained, this request was defense counsel's initial response when the court informed the parties of the mistakes regarding seating the jurors and suggested the options of trying to secure F.'s presence or proceeding with one of the alternates. In this initial response, defense counsel clearly stated his preference for the former option. But Vickrey utterly ignores the lengthy discussion that followed this first exchange, after the break in which the court and counsel briefly researched the issue. At this point, defense counsel expressly stated, more than once, that he agreed with the court's view that because a jury of 12 had been sworn, it would be "inappropriate" to put F. on the jury. There was nothing ambiguous or equivocal about counsel's agreement on this point. The record allows no question that despite his initial response, defense counsel did not seek to have F. placed on the jury but rather affirmatively stated F. should not be placed on the jury.
The People argue that after researching the issue during the court's break, counsel "changed [his] strategy and decided to argue that Juror [F.] should be removed from the jury in hopes of the court declaring a mistrial." After acknowledging that "jeopardy has attached" (People v. Hernandez (2003) 30 Cal.4th 1, 8 (Hernandez) [jeopardy attaches once a jury is empaneled and sworn]), defense counsel stated that a mistrial was required and tried to convince the trial court that it could not use Penal Code section 1089 to substitute an alternate because L. was not being removed for good cause within the meaning of the statute. Whether defense counsel was attempting to take advantage of an opportunity to seek a mistrial or simply concluded from his research that F. could not be seated, defense counsel clearly made a reasoned tactical decision not to pursue having F. as a trial juror. On appeal, Vickrey has not attempted to show this was an irrational choice; he does not even acknowledge that counsel agreed F. should not be seated. As he has not established that counsel's performance fell below an objective standard of reasonableness, his claim of ineffective assistance of counsel fails.
The trial court does not appear to have treated defense counsel's statement that "at a minimum, a mistrial is required" as a motion for mistrial. The court did not expressly refer to or rule on a motion for mistrial and defense counsel did not ask it to do so, though denial of any request for a mistrial is implicit in the court's decision to proceed with substitution pursuant to Penal Code section 1089. In any event, since Vickrey does not argue on appeal that a mistrial motion was made and should have been granted, we are not called upon to address the issue.
Vickrey argues-albeit not in connection with his ineffective assistance of counsel claim-that "[i]t does not appear that double jeopardy would have presented an obstacle" to placing F. on the jury. In Hernandez, the authority he relies on, the trial court improperly discharged a juror during trial and substituted one of the alternates. (Hernandez, supra, 30 Cal.4th at p. 4.) Hernandez concluded the erroneous discharge required reversal of the defendant's conviction but did not bar further prosecution under double jeopardy principles, noting that "as a general rule" a defendant whose conviction is reversed due to trial errors other than insufficiency of the evidence is subject to retrial. (Id. at pp. 3, 6.) We need not address the merits of Vickrey's argument, as he does not suggest defense counsel's concern about double jeopardy rendered his performance deficient. We observe, however, that Hernandez does not necessarily resolve whether double jeopardy would apply in the circumstances here. Hernandez addressed the effect of improperly discharging a juror with an alternate, not, as here, the substitution of someone other than a sworn alternate for a properly discharged juror. Substitution of an alternate when an individual seated juror is discharged does not implicate double jeopardy because, since an alternate is part of the original jury, the substitution leaves the jury intact. (Hernandez, 30 Cal.4th at p. 9; People v. Burns (1948) 84 Cal.App.2d 18, 32.) F. was never sworn as a juror or alternate. In any case, even if double jeopardy would not have precluded reprosecution, nothing in Hernandez addresses the question whether it would have been proper to place F. on the jury.
II. The Trial Court Did not Abuse Its Discretion in Admitting Evidence of Vickrey's Possession of Pornography.
The trial court found the evidence of pornography on Vickrey's computer admissible under Evidence Code sections 1101, subdivision (b), 1108 and 352. Vickrey challenges only the last of these rulings. Specifically, he argues that evidence depicting "explicit sexual conduct with minors" was unduly inflammatory and more prejudicial than probative.
Further statutory references will be to the Evidence Code except as otherwise specified.
A. Background
In an in limine motion to introduce uncharged conduct pursuant to sections 1108 and 1101, subdivision (b), the People sought to introduce some of the pornographic photographs found on Vickrey's computer. The defense simultaneously moved to exclude digital evidence retrieved from Vickrey's computer, which it described as "approximately 30 images of adult pornography and three videos taken by the Defendant's ex-wife of their child in the bathtub." Arguing that the evidence was irrelevant and "barred by Evidence Code section 352's balancing test," Vickrey maintained that the prosecutor was incorrect in saying the evidence contained child pornography; "a simpl[e] viewing of the models in the videos" allowed only the conclusion that "the females are all over the legal age of consent"; defense counsel found approximately 12 of the "videos/images" on adult websites; and "an adult male possessing a small amount of photos/videos containing legally aged models is irrelevant."
Although section 1101, subdivision (a), generally makes evidence of a defendant's uncharged acts "inadmissible when offered to prove his or her conduct on a specified occasion," subdivision (b) of the statute provides, "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." Under section 1108, subdivision (a), "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 Section 1101, if the evidence is not inadmissible pursuant to Section 352."
At the hearing, the prosecutor stated that the search of Vickrey's computer found multiple files containing photographs of "young-looking girls," some "more pornographic" and some "nude." The prosecutor sought to admit a "representative sample . . . specifically, the ones that look the most like children" in her case in chief and expected to get to material found on the hard drive-which she stated contained "over 600 seemingly CP [child pornography] photos"-only if Vickrey testified. The prosecutor argued that the basis of the defense motion to exclude-that the photographs depicted females who were "actually, technically, over 18"-was "not necessarily the point," which in her view was that the photos were clearly intended to depict subjects who looked young "based on both their development and how they are either dressed or made to look." The photos were probative, she argued, because they "show children who look to be approximately 11 years old, in the same state of development [as the victims], and in sexual poses," which the prosecutor thought "shows that the defendant has a propensity for this type of offense and this type of age of victims." In response to the court's questions, the prosecutor stated that one of the photos she was seeking to admit showed a minor having intercourse with an adult, this was the only one showing "an overt sexual act" and none showed physical harm such as "beatings, torture, things of [that] nature."
Defense counsel submitted on his written motion after noting it was possible he would have something to add after viewing the specific images the prosecutor intended to introduce. He confirmed that the "universe" of evidence had been made available to him, he just did not know which specific items the prosecutor would seek to introduce. The court took the motions under submission.
Ruling on the motions the next day, the court first addressed section 1101, subdivision (b), finding the evidence "highly probative" on Vickrey's intent and absence of mistake in touching the victims, and "to show a general motivation to do the touchings." The court explained that, based on the offer of proof, "[t]he evidence tends to reveal an interest in minors' nude bodies and in minors' engaging in sexual behavior with adults" and, as the evidence was found on Vickrey's computer at the time of his arrest, he possessed it close in time to the alleged offenses. The court found the evidence was "similar to the touchings themselves" in terms of "victim type," as the minors in the photos and videos were of similar age to the 11-year-old victims. The court also found the evidence "similar in terms of the general sexual conduct, although [the court was] aware that [the] current case does not involve allegations of forced oral copulation or intercourse."
The court further found that "any potential prejudicial impact to the defendant does not substantially outweigh the incredibly probative value of these items." The court acknowledged that "[a]nything dealing with sexual activity with minors is something that is going to raise the hackles of a lot of people, including jurors," but found the evidence "no more prejudicial than the actual charged offenses in this case. It's no more inflammatory than the charges. The possession of child pornography falls short of actually committing a sexual assault on someone by touching them. [¶] . . . [¶] So while the child pornography is itself concerning from a [section] 352 prejudice perspective, a comparison of that evidence to the actual accusations that are charged against the defendant is not a particularly inflammatory comparison."
With respect to section 1108, the court noted that possession of child pornography comes within the statute's definition of sexual offenses that may be admitted to show propensity when a defendant is charged with a sexual offense, and cited a case holding that evidence of a prior child molestation could be used to prove propensity in a case charging possession of child pornography. The court found the section 352 analysis "a little bit closer . . . of a call" under section 1108 than under section 1101, subdivision (b), but came to the same conclusion. The court found the potential probative value of the evidence to prove propensity to commit the touchings was "significant"-"somewhat less than to prove intent under [section] 1101[, subdivision] (b) or motive or lack of mistake" but "nonetheless still probative"-and not substantially outweighed by the potential risk of prejudice for the reasons previously discussed. In summary, the court stated, "Again, the items are possessed at the same time, they're similar in terms of victim age, they're numerous in quantity, they go above and beyond naked bodies, but actual sexual acts, not remotely possessed in time, but at the same time. And we're talking about accusations here or evidence of accusations of a crime that are less inflammatory than what is charged, an actual assault." The court denied the defense motion to exclude the evidence, granted the People's motion to admit the evidence and stated that the People would be permitted to argue a propensity theory, subject to limiting instructions the court would give.
B. Governing Principles
Section 352 gives trial courts discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Prejudice under section 352 refers to" '" 'evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'"' (People v. Williams (2013) 58 Cal.4th 197, 270.) In this context, '"' "prejudicial' is not synonymous with "damaging." '"' (People v. Virgil (2011) 51 Cal.4th 1210, 1249.)' "Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption' "substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail."' (People v. Doolin (2009) 45 Cal.4th 390, 438-439.)" (People v. Thomas (2023) 14 Cal.5th 327, 363.)" 'Evidence is substantially more prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' (People v. Waidla (2000) 22 Cal.4th 690, 724.)" (People v. Tran (2011) 51 Cal.4th 1040, 1047.)
We review the trial court's decision for abuse of discretion. (People v. Thomas, supra, 14 Cal.5th at p. 358.) "We do not disturb the trial court's ruling unless it was arbitrary, capricious, or made in a' "patently absurd manner that resulted in a manifest miscarriage of justice."' (People v. Powell (2018) 6 Cal.5th 136, 162.)" (Ibid.)
C. Analysis
Preliminarily, the People contend that Vickrey forfeited the argument he makes on appeal by failing to object on this basis in the trial court: His argument at trial was that the pornography found on his computer was irrelevant and inadmissible under section 352 because it was not child pornography and possession of adult pornography had no probative value in this case. Vickrey asserts that his grounds for objection in the trial court were "substantially more expansive than respondent describes," noting that he cited the trial court's authority to exclude the evidence under section 352 and argued introduction of the evidence "posed 'great dangers the jury will see the media, object to its content/nature, and impart that moral judgment onto the Defendant.'" Vickrey's point is not well-taken, as he fails to acknowledge that the discussion of prejudice he points to was expressly tied to his argument that the pornography was not probative because it involved adults. Vickrey argued: "An adult finding another adult sexually appealing is the very definition of irrelevant. Even if [the photos/videos] were relevant, their probative value is effectively zero. The media offers no insight to the jury other than Mr. Vickrey had normal sexual urges and partook in an online activity done by millions of Americans, both men and women, on a daily basis. Against this there is great danger[] the jury will see the media, object to its content/nature, and impart that moral judgment onto the Defendant."
Vickrey never argued below that evidence of child pornography was more prejudicial than probative, as he did not acknowledge that any of the evidence included child pornography. Nor did he address any argument to specific pieces of evidence that he claims on appeal were particularly inflammatory and unduly prejudicial. His argument on appeal is entirely different from his argument at trial, and "the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable." (People v. Seijas (2005) 36 Cal.4th 291, 302.)
Nevertheless, the trial court fully considered the issues and made its decision with the understanding the evidence at issue was child pornography and, in the case of one photograph (exhibit 27), showed an adult engaged in sexual intercourse with a young girl while the present case did not involve allegations of "forced oral copulation or intercourse." Considering the merits of Vickrey's argument on appeal, we conclude the trial court did not abuse its discretion.
Vickrey's argument on appeal is that although possession of pornography has been held admissible to prove intent to molest (People v. Memro (1995) 11 Cal.4th 786, 864), in the present case "pornographic evidence including depictions of explicit sexual conduct with minors was unduly inflammatory and more prejudicial than probative." Focusing on the photograph of the adult male having intercourse with a minor, Vickrey argues that "graphic depictions of explicit sexual conduct involving minors was both unnecessary and highly inflammatory" and the "[d]epiction of an explicit sexual act with a minor . . . is exactly the type of evidence that would evoke an 'emotional bias' among jurors in a sexual assault case."
The trial court found the pornography evidence tended to reveal an interest in "minors' engaging in sexual behavior with adults" as well as "an interest in minors' nude bodies." Of the nine photographs the jury was shown, six were of nude young girls, one of those a girl in a suggestive pose. Two included an adult and a minor in poses suggesting, but not explicitly showing, sexual acts. Only one explicitly and graphically depicted a sexual act between an adult and a minor. All of the photos, including the last one that Vickrey argues was particularly inflammatory, were clearly tied to the issues in this case. As the trial court noted, while possession of child pornography is potentially inflammatory, it is less serious and inflammatory than the actual sexual touching Vickrey was charged with committing. (See People v. Tran, supra, 51 Cal.4th at p. 1047 [potential for prejudice is decreased when testimony describing defendant's uncharged acts is not stronger or more inflammatory than testimony concerning charged offense].) The photographs admitted into evidence constituted a very small amount of the child pornography found in Vickrey's possession-9 of the approximately 30 photographs found on the computer and none of what the prosecutor's offer of proof described as "over 600" found on the hard drive. At least some of the minors in the photographs admitted were of similar ages to Jane Doe 1 and Jane Doe 2. Recognizing that "the propriety or impropriety of admitting evidence of a defendant's pornography will vary from case to case depending upon the facts" (People v. Page (2008) 44 Cal.4th 1, 41, fn. 17), we conclude that in the circumstances here, the trial court acted well within its discretion.
III. Any Instructional Error Was Harmless.
The jury was instructed on attempted lewd act with a minor as a lesser included offense of the charged counts. The instruction stated that to prove Vickrey guilty of the lesser included offense, the People had to prove he "took a direct but ineffective step towards committing a lewd act with a minor under 14" and "intended to commit a lewd act with a minor under 14."
Thereafter, in its "concluding instructions," the court told the jury that before reading the required "very lengthy instruction about the procedure by which you can consider lesser-included offenses," it would "try and simplify it for you." The court stated, "You may be familiar with those Russian dolls that are shaped like a large egg, and if you open one, there's an identical but slightly smaller version of the external version inside. [¶] . . . [¶] I draw this analogy to you why? • Because you only open up the first egg, okay, if you have found the Defendant not guilty of the greater crimes You only consider the lesser offenses attached to Count One, Two, and Three if you have a verdict of not guilty. If your verdict is guilty of the greater offense, you turn to the enhancements, yes, that are attached to that greater offense[], but you don't consider the lesser offenses. If your jury is hung; you're deadlocked on one of the greater offenses, you don't open up the egg and consider the lesser offense of attempt, okay?"
The court then instructed pursuant to CALCRIM No. 3517: "If all of you find that the Defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the Defendant is guilty of that lesser crime. [¶] A Defendant may not be convicted of both a greater and lesser crime for the same conduct.
"Now I will explain to you the crimes affected by this instruction.Attempted lewd act with a minor under 14 is a lesser crime of lewd act with a minor under 14 as charged in Counts One through Three. [¶] It is up to you to decide the order in which you want to consider each crime and the relevant evidence, but I can accept a verdict of guilty on a lesser crime only if you've found the Defendant not guilty of the corresponding greater crime." The instruction went on to explain in detail how to complete the verdict forms, step by step, in each permutation of the jurors' agreement or lack of agreement on the charged and lesser included crime.
This portion of the instruction stated: ""You will receive verdict forms of guilty and not guilty for the greater crime, and then attached to those, verdict forms of guilty and not guilty for the lesser crime. Follow these directions before you give me any completed and signed final verdict form. Return any unused verdict forms to me unsigned. “One, if all of you agree that the People have proved that the Defendant is guilty of the greater crime, complete and sign the verdict form for guilty for that greater crime.Do not complete or sign any other verdict form for that count. Don't open up the egg in that instance. If all of you cannot agree whether the People have proved that the Defendant is guilty of the greater crime, inform me only that you cannot reach an agreement and don't complete or sign any verdict form for that count. If all of you agree that the People have not proved that the Defendant is guilty of the greater crime, and you also agree that the People have proved that he is guilty of the lesser crime, complete and sign the verdict form of not guilty for the greater crime and the verdict form of guilty for the lesser crime. If all of you agree the People have not proved that the Defendant is guilty of the greater or lesser crime, complete and sign the verdict forms for not guilty for both the greater and lesser crime and submit them. If all of you agree the People have not proved the Defendant is guilty of the greater crime, but all of you cannot agree on a unanimous verdict for the lesser crime, complete and sign the verdict form for not guilty of the greater crime and inform me only that you cannot reach agreement of the lesser crime.”
In People v. Kurtzman (1988) 46 Cal.3d 322, the California Supreme Court held that a jury is restricted from "returning a verdict on a lesser included offense before acquitting on a greater offense" but is not precluded from "considering lesser offenses during its deliberations." (Id. at pp. 324325.) Accordingly, "[t]he trial court errs if it instructs the jury 'not to "deliberate on" or "consider"' a lesser included offense until the jury has acquitted the defendant of the greater offense. (Kurtzman, supra, 46 Cal.3d at p. 335; see [People v.] Olivas [(2016)] 248 Cal.App.4th [758,] 774.)" (People v. Hishmeh (2020) 52 Cal.App.5th 46, 52.)
Vickrey argues that is what the trial court did here, in its initial comments before reading CALCRIM No. 3715. The People disagree, arguing that the court's comments referred to how the jury should complete the verdict forms, not how it should conduct deliberations.
The People argue that Vickrey forfeited his claim by not objecting to the instructions at trial but acknowledge that instructional errors are reviewable on appeal to the extent they affect a defendant's substantial rights. (People v. Prieto (2003) 30 Cal.4th 226, 247; § 1259.)
We review claims of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) "The challenged instruction is viewed 'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' (People v. Houston (2012) 54 Cal.4th 1186, 1229.)" (Ibid.)
The jury here was ultimately instructed correctly, pursuant to CALCRIM No. 3517, that although the court could only accept a verdict of guilty on a lesser crime if the jury had found the defendant not guilty of the greater crime, "[i]t is up to you to decide the order in which you want to consider each crime and the relevant evidence." Given that the instructions continued with details about how to address the verdict forms, the People may be correct that the jury would have understood that the court's initial remarks addressed only the verdict process and not deliberations generally.
But the trial court's Russian doll analogy was expressly phrased in terms of when the jury could "consider" the lesser offenses: The court told the jury to "only consider the lesser offenses attached to Count One, Two, and Three if you have a verdict of not guilty" and not to "consider the lesser offense of attempt" if it was hung or deadlocked on one of the greater offenses. Moreover, the court began this portion of the instructions by telling the jurors, "I'm now going to read you a very lengthy instruction about the procedure by which you can consider lesser-included crimes." (Italics added). The court's comment that it was going to "try and simplify" the instruction for them may have caused the jurors to focus more on the court's summary than what the court told them was "a very lengthy" and "dense" instruction" that the court was required "by law" to read. In short, while the court and counsel no doubt understood these remarks as addressing the manner in which the jury should approach the verdict forms, we are not convinced the distinction between deliberations and verdicts would have been as clear to the jury.
In our view, CALCRIM No. 3517, while lengthy, is clear. Although the trial court intended to "simplify" the instruction, its analogy seems to us more likely to confuse jurors than assist them, at least as worded in this case.
We need not definitively resolve the point, however, as any error was clearly harmless in this case. The applicable standard is Watson: The error is not prejudicial if it is not reasonably probable that a different result would have been reached if the contested instructions had not been given. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Kurtzman, supra, 46 Cal.3d at p. 335; People v. Olivas, supra, 248 Cal.App.4th at p. 775.)
Vickrey argues that the jurors may have disagreed as to whether he actually touched the victims but agreed that he acted "inappropriately" by the "stalking-type" behavior of standing over the sleeping victims. He quotes Jane Doe 1's testimony that on both the night of the December sleepover party and the night of the August sleepover she woke up to see Vickrey standing over her, and Jane Doe 2's testimony that she awoke on the couch to find Vickrey on the couch behind her.
No one at trial suggested to the jury any theory by which Vickrey might be guilty of attempted lewd conduct. Vickrey testified, and defense counsel argued in his closing, that the conduct Jane Doe 1 and Jane Doe 2 described did not occur at all. Nothing in the girls' testimony provided a reason for jurors to believe Vickrey "intended to commit a lewd act with a minor under 14" and "took a direct but ineffective step towards" doing so but stopped short of actually touching one or both of the girls. Both victims described their initial discovery of Vickrey's presence-what Vickrey suggests the jury could have seen as disturbing stalking-type behavior-as simultaneous or continuous with the lewd acts he committed. Additionally, the record suggests the jury had little difficulty reaching its verdicts: It deliberated for a total of barely an hour and a half before asking the court a question about the enhancements, which it had been instructed to resolve only if it found Vickrey guilty of one of the charged offenses, and another 10 minutes after the court's response.
Defense counsel's argument pointed to inconsistencies in and between the two girls' statements, argued their stories became more aligned over time and suggested they could have been influenced by rumors circulating at school; argued the police failed to properly investigate the incidents; questioned the import of the pornography evidence and Holcombe's credibility in testifying he was sure the girls portrayed were under age 18; and emphasized the beyond-a-reasonable doubt standard.
Asked what Vickrey was doing when she noticed him behind her on the couch, Jane Doe 2 responded that he was touching "[m]y chest and privates." Jane Doe 1 testified that when she opened her eyes at the sleepover party, "I was just kind of woken like what was he doing"; asked what happened next, she stated, "[h]e had knelt down and then started touching me [¶] . . . [¶] [o]n my privates." On the night in August, when she woke up and saw Vickrey standing over her, "I laid there because I was too scared to do anything" and the next thing that happened was that "[h]e touched me again."
We conclude it is not reasonably probable the jury would have found Vickrey not guilty of the charged offenses if the challenged instructions had not been given.
DISPOSITION
The judgment is affirmed.
We concur. MILLER, J., MAYFIELD, J. [*]
[*]Judge of the Mendocino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.