Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC449362
Mihara, J.
On April 25, 2005, the Santa Clara County District Attorney charged defendant Brian Jerome Armstrong with committing a lewd and lascivious act on a child under 14 (Pen. Code, § 288, subd. (a); count one), with employing, persuading or inducing a minor’s involvement in modeling, posing or performing sexual conduct (Pen. Code, § 311.4, subd. (c); count two), and with four counts of misdemeanor possession of child pornography (Pen. Code, § 311.11, subd. (a); counts three through seven). The jury found defendant guilty on all counts. The trial court sentenced defendant to two years in prison on count one and three years on count two, for a total of five years in state prison. On appeal, defendant contends: (1) the search warrant executed on February 12, 2004 was not supported by probable cause; (2) there is insufficient evidence to support the conviction under count two; (3) evidence submitted on count two was obtained in violation of his rights under Massiah; (4) his counsel provided ineffective assistance by failing to move to suppress evidence obtained in violation of his Sixth Amendment rights under Miranda; (5) evidence admitted pursuant to Evidence Code section 1108 should have been excluded; and (6) the trial court committed instructional error by failing to specify the sexual offenses referenced in CALJIC No. 2.50.01. We find insufficient evidence to support defendant’s conviction for a violation of section 311.4, but reject defendant’s remaining contentions. We reverse the judgment and remand for re sentencing.
All further statutory references are to the Penal Code unless otherwise noted.
People v. Massiah (1964) 377 U.S. 201 (Massiah).
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
I. Factual Background
From 1994 to 2004, defendant was a school bus driver for San Jose Unified School District. Defendant has shared a home in San Jose with his sister and twin nephews since 1994.
On February 12, 2004, San Jose police, led by Detective Arthur King, executed a search warrant at defendant’s residence, seizing two computers and a number of videotapes, CDs, DVDs and printed material containing images of children engaged in sex acts. On April 16, 2004, the police executed another search warrant. The police found surveillance video cameras and related equipment, including a remote.
A. Count One (§ 288, subd. (a))
One homemade videotape found in defendant’s residence included short snippets of children on a school bus. The camera seemed to focus on a girl named Kaitlyn Doe and appeared to include recordings from several different days.
Kaitlyn recognized herself on the tape. She was in the fourth or fifth grade when she rode the school bus driven by defendant. Kaitlyn thought defendant was a good bus driver and she usually rode in the front of the bus, near defendant. Defendant tickled her on her feet, neck, stomach, and arms “lots of times” and held her upside down by her ankles. The tickling did not bother her and she sometimes “play[ed] around” with defendant and her friend, Andrea. Defendant also tickled Andrea.
Defendant testified that in 2000, he purchased a camera and accessories to record the children in the bus because he was having discipline problems. He used a camera in the bus at various times until 2003. Defendant said that in the video in which Kaitlyn appears he was trying to focus on a boy and his sister, sitting behind Kaitlyn. Only the boy’s foot is visible in the video.
B. Count Two (§ 311.4, subd. (c))
Another homemade videotape from defendant’s residence showed a girl, Jane Doe, in the bathroom of defendant’s house. Jane’s mother is a friend of defendant’s sister, Cindy. Jane spent the night with Cindy in April 2002, when she was about 12 years old. The tape contained images of Jane using the toilet and in various stages of undress. The tape showed only Jane using the bathroom and did not show the periods of time between her visits to the bathroom. King testified that when he executed the April 16 search warrant, defendant told him that he recorded the girl in the bathroom. Defendant said that when he heard Jane go to the bathroom, he flipped a switch on the transformer to activate the recorder and watch her live.
At trial, defendant testified that he did not know Jane was coming to the house until that night. Two days earlier, he had installed a camera in the bathroom to determine which of his nephews was urinating outside the toilet bowl. Defendant said he did not know he was recording Jane because there was no way to monitor live what he was receiving from the transmitter and no remote to turn the camera on at select times. Cindy also testified it was not a per-planned sleepover. Around the time of the sleepover, she and defendant had a big problem with her sons urinating in the bathroom and each twin blaming the other.
C. Counts Three Through Seven (§ 311.11, subd. (a))
CDs and DVDs taken from defendant’s residence depicted children performing sex acts. A computer seized from defendant’s residence contained 137 photographic images of young females exposing themselves. The forensics lab also found 431 videos or pieces of video depicting minors involved in sexual activity, including oral copulation, masturbation, and intercourse. The forensics lab did not find any evidence of pornographic images being sent to others or any listings of children. Printed materials from defendant’s residence also contained pictures of nude children.
D. Prior Acts
Eleven-year-old Antoinette testified at trial. She was in the fourth grade when she rode defendant’s bus, and in between the fifth and sixth grades at the time of trial. One day, defendant told her brother to get off of the bus. He then tickled her on her waist and knees. She was standing in the middle of the bus and only one other child was present. Antoinette’s brother told defendant to “let go of her.” Shortly after, defendant let her go and she ran off the bus with her brother. Antoinette did not like being tickled and was “sort of surprised” defendant did it. She felt scared because she thought her mom would get mad at her for being touched. Defendant said he did not remember Antoinette.
In January 2003, Kathy Klein observed a bus stopped in front of her house, which was not a designated bus stop, with only one five- or six-year-old girl (Cynthia) left on the bus. Defendant was stroking Cynthia’s back. Cynthia’s mother approached the bus and the girl exited. Klein ran outside to let the mother know what she had seen, but was unable to communicate with her because the mother did not speak English. Klein flagged down a police car.
Defendant testified that Cynthia was sick, so he felt her forehead and rolled up his sweatshirt for her to lie down on the bus seat. He knew Cynthia and her family because they lived near him and he saw her mother heading toward the bus. Defendant rubbed Cynthia’s back trying to comfort her as they waited for her mother.
Defendant also testified that he never touched a child except for in fun or when disciplining someone. He was never cited for violating any San Jose Unified policy or for any inappropriate interaction with children. He admitted, however, that viewing videotapes of young children engaged in sexual acts sometimes aroused him.
II. Discussion
A. February 2004 Search Warrant
On February 11, 2004, King completed a search warrant and affidavit of probable cause to search defendant’s residence and person for property relating to child pornography possession. The affidavit sets forth the following background information. In September 2002, the United States Postal Inspection Investigation Division arrested an individual, Angel Maris cal. Maris cal ran a mail order child pornography business, referred to in accompanying documents as CRT. U.S. Postal identified defendant as a customer of CRT who had ordered approximately $7,000 worth of videos or DVDs. U.S. Postal ran successful reverse stings on other CRT customers, but “[e]evidence indicated that [defendant] was dissatisfied with the customer service from Maris cal and did not respond to an e-mail contact.”
The affidavit states: “The VHS and DVDs were being sold for approximately $975.00 per video or DVD. . . . [¶] The suspect Brian Jerome Armstrong was identified as receiving approximately $7,000.00 worth of video or DVD.” According to the order forms attached to the affidavit, however, the cost for the DVDs and tapes defendant ordered ranged from $35 to $185 each. Additionally, the order forms document only $4,751 worth of merchandise ordered plus shipping costs of approximately $200.
The affidavit does not state when defendant was a Maris cal/CRT customer. However, order forms and Air Bills attached to the affidavit indicate defendant purchased items from CRT from at least 1998 to June 2000. A postal inspector viewed the relevant media and informed King that the tapes contain “images of child pornography.” On one “order form in what is probably [defendant’s] handwriting he states ‘You will get a letter I sent the day before I got this flayer please consider it. PS. Am collector[.] No one knows I own these tapes except you. B.’” Prior to submitting the affidavit, King confirmed defendant still resided at the address located on the CRT documents.
King also noted in the affidavit that defendant “was a subject in a possible child annoyance case that occurred on January 30, 2003. . . . Armstrong was seen with a six year old girl touching her as she got off of a bus. Armstrong is a bus driver for the San Jose Unified School District. The young girl stated that Armstrong was touching her back, but did not kiss her or touch her in any inappropriate fashion. Armstrong said that he drops the young girl off on his bus route but on that day she said she was feeling sick. Armstrong said he felt her forehead and rubbed her back for around 12 seconds. Then she got off the bus. The case was not pursued further.”
As set forth in the affidavit, at the time King signed the affidavit he had been a law enforcement officer in California for 18 years and assigned to the Sexual Assault Felony Enforcement Unit for the last four years. He had conducted over 300 child exploitation investigations, overheard or interviewed over 150 child molesters, and reviewed over 500 pictures, movies and videotapes of child pornography. Based on this experience, King stated that “[p]persons involved in sending or receiving child pornography tend to retain it for long periods of time. The images obtained, traded and/or sold are prized by those individuals interested in child pornography. In addition to their ‘emotional’ value, the images are intrinsically valuable as trading/selling material and therefore are rarely destroyed or deleted by the individual collector.” King stated that in his opinion there was probable cause to believe defendant was still in possession of the DVDs and videotapes due to the monetary value of the material and evidence indicating defendant is a “collector” of child pornography.
The court signed the search warrant for defendant’s residence and person, including all sexually explicit materials, computer equipment, photography equipment, and electronic files. King executed the warrant on February 12, 2004, and the items seized eventually led to defendant’s arrest and the charges against him. Prior to trial, defendant brought a motion to suppress, in which defendant argued that the search warrant affidavit did not establish probable cause. After hearing argument on the issue, the trial court denied the motion.
“‘[P]probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’” (People v. Camarella (1991) 54 Cal.3d 592, 601 (Camarella).) In evaluating a search warrant application, the question for the magistrate is “whether, given all the circumstances set forth in the affidavit[,] . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238; Camarella, supra, 54 Cal.3d at p.601.) In other words, “[p]probable cause is a ‘strong suspicion’ that what is being sought will be in the location to be searched.” (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232 (Deutsch), quoting Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564.)
“The magistrate’s determination of probable cause is entitled to deferential review.” (People v. Kraft (2000) 23 Cal.4th 978, 1041 (Kraft).) On appeal, we consider only whether there was “a ‘substantial basis’ for the finding that the property sought was ‘probably present’ on the premises.” (People v. Pressey (2002) 102 Cal.App.4th 1178, 1182, citing Kraft, supra, 23 Cal.4that p. 1041.) “Accordingly, the magistrate’s determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. Doubtful or marginal cases are resolved in favor of upholding the warrant.” (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278, citations omitted.)
Defendant argues that the search warrant affidavit in this case lacked probable cause because it was based only on stale information. The time element factors into the probable cause determination because “[a]n affidavit supporting a search warrant must provide probable cause to believe the material to be seized is still on the premises when the warrant is sought.” (People v. McDaniel's (1994) 21 Cal.App.4th 1560, 1564.) No clear cut rule establishes when the time span must be deemed too attenuated; the issue of staleness turns on the facts of each particular case. (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393 (Alexander); People v. Gibson (2001) 90 Cal.App.4th 371, 380.) If there are special circumstances that would justify the conclusion by a person of ordinary prudence that the alleged illegal activity had persisted from the time of the stale information to the present, then the passage of time has not deprived the old information of all value. (Alexander, supra, 9 Cal.3d at p. 393; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.)
The February 11, 2004 affidavit is based on two primary facts: (1) defendant purchased approximately $7,000 worth of child pornography from 1998 to June 2000; and (2) defendant was the subject of a child annoyance investigation in 2003. Although evidence even a few weeks old may be considered stale in some cases, the ongoing nature of the criminal activity at issue in this case allows for the consideration of evidence that might be deemed too remote in a different context. (See People v. Hulland (2003) 110 Cal.App.4th 1646, 1652 [the nature of the activity may justify reliance on more remote information]; United States v. Newsom (7th Cir. 2005) 402 F.3d 780, 783 (Newsom) [“Information a year old is not necessarily stale as a matter of law, especially where child pornography is concerned.”].) Relying in part on the tendency of child pornography collectors to retain the material for lengthy periods of time, several courts have upheld search warrants for child pornography based on information that might otherwise be considered stale. (See, e.g., United States v. Lacy (9th Cir. 1997) 119 F.3d 742, 745 [upholding warrant based on information that the defendant downloaded child pornography 10 months earlier and on assertion that this type of person would generally retain it]; United States v. Harvey (3d Cir. 1993) 2 F.3d 1318, 1322-1323 [upholding warrant based on delivery of pornographic materials on several occasions, from two to fifteen months prior to issuance of warrant, and on statement that pedophiles rarely, if ever, dispose of their illicit material]; see also United States v. Rabe (9th Cir. 1988) 848 F.2d 994, 997 (Rabe)[upholding warrant based on seizure of child pornography addressed to defendant two years earlier plus recent correspondence with the defendant showing continued interest in material; affidavit detailed habits of child pornography collectors]; Newsom, supra, 402 F.3d at p.783 [upholding warrant based on girlfriend’s observation of child pornography one year earlier and on her recent discovery of videos of her daughter naked; referencing fact that collectors tend to retain their materials for long periods of time].)
In this case, the evidence presented to the magistrate suggested that defendant was a serious collector of child pornography and not someone with only a passing interest in the illicit material. Defendant ordered several thousand dollars worth of child pornography, at least 40 separate volumes in total, and informed the mail order company that he considered himself a “collector.” He also stated that only CRT knew of his purchases, suggesting further that he retained the material and did not sell or trade it. Defendant’s purchases spanned over two years and the affidavit indicated that he terminated his relationship with the company due to dissatisfaction with their customer service, not, for instance, due to newfound disinterest in the material. The affidavit also details, based on the affiant’s considerable experience and expertise, the proclivities and predilections of child pornography users, including the tendency to value highly the illicit material and to retain it for lengthy periods of time. (Deutsch, supra, 44 Cal.App.4th 1224, 1232 [the opinions of an experienced officer may be considered by the magistrate in making a probable cause determination].) In short, defendant’s substantial interest in the illicit material, when combined with the known practices of child pornography collectors, supports a “strong suspicion” that defendant retained at least some of the material in 2004.
Forty is a conservative estimate as several of the volumes ordered appear to be “combos” composed of two separate pieces of media (e.g., Dancers 1 & 2). Moreover, the earliest order form attached, with a shipment notation of April 30, 1998, refers to earlier purchases from the company not otherwise documented.
Defendant argues that Rabe, supra,848 F.2d 994, in particular, is distinguishable because this case lacks recent corroboration of his continuing interest in child pornography. In Rabe,two years prior to the warrant, U.S. Customs seized two packages addressed to the defendant that contained child pornography. (Id. at p. 995.) The warrant affidavit also referenced recent correspondence with the defendant indicating that he maintained his interest in child pornography. (Ibid.) The court relied on the latter information in upholding the warrant. (Id. at p. 997.)
There is, however, more recent corroborating evidence in this case—the 2003 child annoyance investigation, one year prior to the warrant. Although it was not pursued, the incident shows defendant’s continued interest in young children. Defendant’s choice of occupation (school bus driver) strengthens the inference of an attraction to children. In the affidavit, King hints at the importance of schools to child pornography collectors and child molesters, noting that persons who buy child pornography often prefer children of a “particular age or developmental range” and that such persons often maintain “school rosters.” The particulars of defendant’s purchase history (including the length of time, the number of items purchased, and the value of the material), moreover, are far more persuasive than the two-year-old information in Rabe that was supplemented with more recent corroborating evidence. In this context, the magistrate could conclude the intervening three years and eight months did not significantly diminish the probability of defendant’s continuing possession of obscene material. We defer to the magistrate’s decision and uphold the warrant.
B. Sufficiency of the Evidence
Defendant contends that there is insufficient evidence to support his conviction under count two—employing a minor in the production of material depicting sexual conduct by a minor in violation of section 311.4, subdivision (c). Section 311.4, subdivision (c) states, in relevant part: “Every person who, with knowledge that a person is a minor under the age of 18 years[] . . . knowingly promotes, employs, uses, persuades, induces, or coerces 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, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, . . . 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, is guilty of a felony. It is not necessary to prove commercial purposes in order to establish a violation of this subdivision.” (Italics added.) Defendant contends that because Jane Doe was unaware she was being taped (a fact which is undisputed), there is insufficient evidence that she was “posing or modeling” as required by the statute. We agree that the evidence does not support conviction under this statute.
“Enacted in 1961, section 311.4 is part of a statutory scheme ‘to combat the exploitive use of children in the production of pornography.’ (People v. Cantrell (1992) 7 Cal.App.4th 523, 540.) The statute is ‘aimed at extinguishing the market for sexually explicit materials featuring children.’ (Ibid.)” (People v. Cochran (2002) 28 Cal.4th 396, 402 (Cochran).) In Cochran, our Supreme Court set forth the elements of a violation of section 311.4, subdivision (b): “[T]he defendant must: (1) knowingly have caused a child, (2) who is known or should be known to be a child, (3) to participate in the production of any representation of sexual conduct by a child, (4) for commercial purposes.” (Id. at p. 401, italics added.) The court observed that subdivision (c), at issue here, “is substantially identical” to subdivision (b) other than the absence of the requirement that the defendant have a commercial purpose. (Ibid.)
The prosecution argues that the Cochran court’s summary of the statutory elements establishes that the minor’s awareness of the production is not an element of the crime charged. Not only does this argument ignore the axiom that an opinion’s precedented weight is limited to the issues actually raised and decided (see People v. Mendoza (2000) 23 Cal.4th 896, 915), but it disregards the potential nuances in the court’s recitation of the statute’s requirements. Although the Cochran court did not directly refer to “posing or modeling,” it also did not hold that “posing or modeling” is not a required element or that “posing or modeling” encompasses a child’s unknowing involvement. To use the Supreme Court’s paraphrasing of the statute, the question presented in this case is what constitutes a child’s participation in the production of prohibited material?
“The goal of statutory construction is to ascertain and effectuate the intent of the Legislature.” (Cochran, supra,28 Cal.4th at p. 400, internal quotation marks omitted.) To that end, “we must first look at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose. If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute’s true meaning.” (Id. at pp. 400-401, internal citations omitted.) We therefore turn first to the language of the statute. Subdivision (c) does not prohibit all “uses” of a minor in the creation of illicit material, but only using a minor “to engage in or assist others to engage in either posing or modeling[.]” (§ 311.4, subd. (c).) Ignoring this phrase would render it superfluous, a finding contrary to the basic principles of statutory construction. (See Reno v. Baird (1998) 18 Cal.4th 640, 658 [“It is a maxim of statutory construction that ‘Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplus age.’”].)
On this point, we note that the jury instruction for count two, which was not derived from a standard CALJIC instruction, was deficient. The instruction informs the jury that defendant was “charged with Employing, Persuading, or Inducing a Minor’s Involvement in Modeling, Posing, or Performing Sexual Conduct, in Violation of Penal Code Section 311.4(c)[.]” The reference to modeling, posing or performing sexual conduct misstates the nature of the prohibited conduct, which requires “posing or modeling” and “sexual conduct by a minor.” Moreover, the instruction states that the People need prove only that “(1) the defendant knowingly caused a minor, (2) who the defendant knew or should have known to be a minor, (3) to participate in the production of any presentation of sexual conduct by the minor.” The failure to require that the minor “participate” in the production by engaging in or assisting others to engage in either posing or modeling was in error.
In examining the distinct requirement that the minor “engage in either posing or modeling,” we consider first the majority’s position in the recent Fourth District opinion People v. Hobbs (2007) 152 Cal.App.4th 1, petn. for review filed July 7, 2007 (Hobbs) (maj. opn. of Ramirez, J.). In Hobbs, the defendant was convicted of 40 counts of violating section 311.4, subdivision (c) for filming “girls who were competing in [a] swim meet as they changed into and out of their bathing suits” in a school locker room. (Id. at pp. 3, 4.) The defendant videotaped the girls, without their knowledge, from a coaches’ office adjacent to the locker room. (Id. at p. 4.) Prior to the scheduled swim meet, the defendant had surreptitiously entered the locker room and set out cones, caution tape, and signs “to block off rows of lockers that were outside his camera range.” (Ibid.) The majority rejected the defendant’s contention that his actions did not constitute a violation of section 311.4, subdivision (c) because the statute “‘requires that the [victims] be engaged in posing or modeling at the direction of [the defendant].’” (Hobbs, supra, 152 Cal.App.4th at p. 5.) The court first concluded that “using” a minor does not require “person-to-person interaction between defendant and the victim(s).” (Id. at pp. 5-6.) Second, the court held that because the defendant “posed the victims by herding them with the signs, cones and caution tape to a position most favorable to filming[,]” the minors necessarily were “posing or modeling.” (Id. at p. 8 & fn. 9.) The majority determined that the statute was satisfied because the girls intentionally assumed the positions in which they were filmed, despite their ignorance regarding the filming. (Ibid.)
We respectfully disagree with the Hobbs court’s reasoning. “Posing or modeling” conveys a specific meaning that is not satisfied by Jane Doe’s role in the videotape. As defined in Webster’s Dictionary, to “pose” is “to place oneself in a given posture or attitude usu. for artistic purposes” and to “model” is “to work or act as a model[.]” (Webster’s 3d New Internet. Dict. (1993) pp. 1451, 1769.) The common definition of each word thus implies action (“to place oneself in a given posture”; “to work or act”) by the minor in relation to the preparation of a film, photograph, or other media depicting “sexual conduct by a child.” The dissent in Hobbs reached a similar conclusion: “Posing and modeling both require that the subject intentionally assume a certain position. They also both require that the subject know-or at least contemplate the possibility-that he or she is being observed. . . . [A] person going about his or her business, without knowingly posing or modeling, simply is not posing or modeling at all. Otherwise, we would all be posing or modeling all the time[.]” (Hobbs, supra, 152 Cal.App.4th at p. 10 (dis. opn. of Richli, J.).) As the dissent further explained, “the statute requires that the defendant must promote, employ, use, persuade, induce, or coerce the minor to engage in posing. The defendant need not pose the minor (transitive); however, the minor must pose (intransitive).” (Ibid.) Fidelity to both the rules of statutory construction and the rules of grammer thus necessitates that there be some minimal level of interaction between the defendant and the minor such that the minor is herself “posing or modeling.” (See ibid.) No such interaction exists in this case.
A “model” is one who “serves as a pattern or source of inspiration for an artist or writer[,]” especially “one who poses for an artist[.]” (Webster’s 3d New Internet. Dict. (1993) p. 1451.)
Even if we were to adopt the Hobbs majority’s view—that because the defendant “posed” the minors by setting up cones and signs to direct their movements in the locker room, the minors necessarily posed—we would find the facts before us distinguishable. Defendant simply hid a camera in the bathroom, which Jane Doe then entered and used in entirely the same way she would have if there had been no camera at all. There is simply no support for an argument that defendant “posed” the minor in this case.
The findings in People v. Kongs (1994) 30 Cal.App.4th 1741 (Kongs), which the People cite, do not alter our interpretation of the statute. In that case, the court considered “whether there was sufficient evidence of ‘exhibition of the genitals, pubic, or rectal area for the purpose of sexual stimulation of the viewer’ to sustain the magistrate’s decision to hold [the defendant] to answer” to a charge of violating section 311.4, subdivision (c). (Id. at p. 1753.) The defendant had taken suggestive photographs of a minor as she posed for him as part of an event in which both aspiring photographers and models develop portfolios. (Id. at pp. 1746-1747.) After concluding that the photographs included sexual conduct as defined by the statute, the court briefly discussed separate charges of possession of child pornography. (Id. at pp. 1756-1757.) In this context, the court noted that “[i]n one instance, the subjects are unwitting children sitting on a curb watching a parade go by, in a portion of the video tape appropriately titled “‘Panties on Parade.’” (Kongs, supra, 30 Cal.App.4th at p. 1757.) The People seize upon this language in arguing that knowledge is not required, but the Kongs court’s reference to “unwitting” minors was unrelated to the analysis under section 311.4, subdivision (c). (See ibid.)
Our construction of the statute, derived from its plain language, is not inconsistent with its purpose. We agree with Justice Richli’s observation that on its face “section 311.4, subdivision (c) does not target the person who films the minor, as such; rather, it targets the person who causes the minor to participate.” (Hobbs, supra, 152 Cal.App.4th at p. 11 (dis. opn. of Richli, J.).) Moreover, section 311.4 was intended in broad terms “to protect minors from being corrupted and abused in the production of pornographic material.” (See People v. Cantrell, supra, 7 Cal.App.4th 523, 543, quoting People v. Burrows (1968) 260 Cal.App.2d 228, 232, internal quotation marks omitted.) Among other concerns was “the injury to the minor’s character, and the handicap to his [or her] healthy emotional development resulting from abuse in the production of [such] material[.]” (See People v. Cantrell, supra, 7 Cal.App.4th at p. 543, internal quotation marks omitted.) The potential for this exploitive harm is heightened when the child is an active participant in the production of illicit material.
Like the Hobbs dissent, we find “that the statute requires some interaction, albeit perhaps only indirectly, between the defendant and the minor” such that the minor “engage in either posing or modeling.” (Hobbs, supra, 152 Cal.App.4th at p. 11 (dis. opn. of Richli, J.).) We thus conclude that there is insufficient evidence to sustain defendant’s conviction for a violation of section 311.4, subdivision (c) and that defendant’s conviction under count two must be reversed.
Our conclusion regarding the requirements of section 311.4, subdivision (c) does not mean that actions like defendant’s will go unpunished; other statutes are available to address the type of wrongful behavior described in this case. (See, e.g., § 647, subd. (k) [proscribing, among other things, use of a concealed camcorder to secretly videotape another person in a bathroom or changing room without their knowledge or consent and with the intent to invade their privacy]; § 311.3 [prohibiting the sexual exploitation of a child through the knowing development or duplication of a videotape that depicts a minor engaged in sexual conduct]; § 311.11 [felony possession of child pornography; prohibiting possession or control of images depicting a minor engaged in or simulating sexual conduct].)
C. Ineffective Assistance of Counsel/Miranda Claim
As defendant’s Massiah claim goes only to count two, we do not reach the issue.
Defendant argues that his counsel provided ineffective assistance by failing to move to suppress defendant’s statements to King on February 12 and April 16, 2004 pursuant to Miranda. Defendant alternatively argues that if defense counsel did move to suppress, and the issue was preserved, then this court should conclude his rights were violated when the police failed to provide Miranda warnings. He contends that all evidence elicited during the February 12 and April 16 searches must be suppressed as “fruit of the poisonous tree.” We disagree.
Defendant refers repeatedly to a violation of his Sixth Amendment right to the assistance of counsel. However, failure to provide a Miranda warning, absent a request for counsel, implicates the defendant’s Fifth Amendment right against self-incrimination.
“In Miranda v. Arizona, the United States Supreme Court determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney.” (People v. Bradford (1997) 14 Cal.4th 1005, 1033, internal quotation marks omitted.) The “[f]failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.” (Oregon v. Elstad (1985) 470 U.S. 298, 307; Bradford, supra, 14 Cal.4th at p. 1053.) The self-incrimination clause is not implicated, however, “by the admission into evidence of the physical fruit of a voluntary statement.” (United States v. Patane (2004) 542 U.S. 630, 636 (Patane).) Thus, “the failure to give a defendant Miranda warnings does not require suppression of physical evidence obtained as a result of the defendant’s unwarned but voluntary statements.” (People v. Davis (2005) 36 Cal.4th 510, 552, citing Patane, supra, 542 U.S. 630.)
We consider first whether defense counsel moved to suppress under Miranda, and, thus, whether this claim is appropriately analyzed under the ineffective assistance of counsel rubric. During the pretrial hearing on motions in limine, defense counsel objected to admission of defendant’s February 12 and April 16 statements to King. When prompted for the basis of his objection, counsel stated: “Is that – well, they weren’t Mirandized – either one. They were probably involuntary at the – in the judicial sense at the time, and therefore, they should not be admissible in any context.” The prosecution then called King to testify.
King served a search warrant at defendant’s residence on February 12, 2004. Defendant initially objected to the officers’ entry and was taken “to the ground” by another officer. After defendant “calmed down,” he sat in a chair across from King and King gave him the warrant. Defendant read it and informed King he was “not into duplication” and that he “had the stuff for personal pleasure.” Defendant also pointed out specific items at the request of the officers. King served another search warrant on defendant on April 16, 2004. On that date, defendant “was very cooperative” and again conversed with King. He told King he recorded the little girl in the bathroom and that when he heard her go into the bathroom, he flipped a switch on the transformer to activate the recorder and watch her live. King did not provide defendant Miranda advisements on either occasion.
At the conclusion of King’s testimony, the prosecutor said he intended in the case-in-chief to introduce only defendant’s statements from April 16. Defense counsel submitted “on the voluntariness issue” for the April 16 statements, but continued to object to any use of the February 12 statements. He stated, in part: “I’m going to suggest to the court that the questions and answers that were listed were not only perhaps without a Miranda warning that would therefore strip of any validity,” but also that the officer’s testimony regarding the statements was not credible. The court ruled the April 16 statements admissible. However, the trial court indicated a continued voluntariness concern with the February 12 statements and reserved the issue of their admissibility for impeachment purposes. (See Harris v. New York (1971) 401 U.S. 222, 224-226 [if voluntary, even statements obtained in violation of Miranda can be used for impeachment purposes, so that the truth-finding function of the trial is not distorted by the defense].) The prosecution did not introduce the February 12 statements during the jury trial.
Our review of the record leads to several findings that narrow our discussion. First, although it appears defense counsel abandoned any Miranda claim for the April 16 statements, these statements apply only to count two. As we have found that there is insufficient evidence to support count two, we need not reach the merits of defendant’s Miranda argument in regard to defendant’s statements regarding his recording of Jane Doe.
Second, defense counsel did claim a Miranda violation for the February 12 statements regarding “duplication” and “personal pleasure.” The prosecutor implicitly conceded the Miranda issue and these two incriminating statements were not introduced at trial. Thus, counsel was not ineffective for failing to object to their admission on Miranda grounds and defendant suffered no prejudice as to these statements.
Third, the only February 12 statements introduced at trial were elicited during defense counsel’s cross-examination of King. Defendant’s trial counsel asked King whether defendant was escorted to his room “because he was asked to do something or he asked you if he could do something[?]” King replied: “. . . I believe I asked him where we could find something in his room. He said yeah, right here, and I said, ‘You want to show us,’ and he said okay, and we walked in and he pointed to what we could find.” Follow-up questions clarified that defendant identified a black CD case in response to King’s request to locate specific material. The black case had been previously marked as People’s Exhibit 3 and used to show possession of child pornography; the discs in the case contained video images of children engaging in sex acts.
Even if defendant’s identification of the black CD case and his related statements were obtained in violation of Miranda, we cannot conclude that counsel provided ineffective assistance. To show ineffective assistance of counsel, the defendant must prove that trial counsel’s representation fell below an “objective standard of reasonableness,” and that counsel’s error prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-690 (Strickland); People v. Williams (1997) 16 Cal.4th 153, 215.) On appeal, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” (Strickland, supra,466 U.S. at p. 689.) “Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 979-980.)
After eliciting the statements defense counsel explained to the court, out of the presence of the jury, that he pursued the line of questioning to re-raise a motion to traverse the February 12 warrant and suppress the evidence. The prosecutor assured the court that even if he thought the door had been opened on the issue of defendant’s other February 12 statements to King, he would not elicit them. Defense counsel informed the court that he would proceed and that he “under st[ood] the dangers of all of this.” We will not second-guess defense counsel’s informed, tactical decision. (See People v. Frierson (1979) 25 Cal.3d 142, 158 [counsel is in the best position to judge the jury’s reaction, and the appellate court, except in rare cases, should not attempt to second-guess tactical decisions, such as those relating to the admission of evidence and impeachment of witnesses].) It was undisputed that the black CD case was seized from defendant’s room and was his property. We therefore fail to see any harm to defendant in eliciting that he was cooperative with the police regarding the location of the sought-after items. There is no support for defendant’s ineffective assistance claim in connection with the admission of these relatively insignificant statements.
To the extent that defendant is arguing that trial counsel erred in failing to move to exclude all evidence discovered during the February 12 search (it appears the April 16 search uncovered evidence related only to count two), this claim also is without merit. Defendant relies on the Sixth Amendment right to counsel and on the exclusionary rule applicable to violations of a defendant’s Fourth Amendment rights to claim that all evidence should be excluded as a result of the alleged Miranda violation. These authorities are inapt. Defendant fails to address the legal precedent, noted above, that establishes that a Miranda violation does not require the “suppression of the physical fruits” derived from unwarned, voluntary statements. (See, e.g., Patane, supra, 542 U.S. at p. 634.) As the Supreme Court explained in Patane, violations of a defendant’s constitutional rights “occur, if at all, only upon the admission of unwarned statements into evidence at trial”; thus, exclusion of the unwarned statement is a sufficient remedy for Miranda violation and there is “no reason to apply the ‘fruit of the poisonous tree’ doctrine[.]” (Id. at pp. 641-642.) Assuming defendant’s February 12 statements were taken in violation of Miranda, defendant has not shown that they were involuntary or coerced. Although there was an initial scuffle when the police entered the residence, defendant was restrained only briefly, no weapons were drawn, and defendant quickly calmed down. During the conversation with King, defendant was in his own home, was not subject to physical restraint, was not threatened, was not made any promises. Defendant was not told that he could not leave, that he was required to speak to King, or that he was under arrest. Additionally, we question defendant’s summary assertion that the evidence seized from his residence was “elicited as a result” of defendant’s conversation with King. Defendant’s statements, at most, aided the officers in locating the desired items more quickly; the items were the subject of a valid search warrant issued prior to defendant’s conversation with King.
We find no error in the admission of evidence seized from defendant’s residence on February 12, no evidence that counsel provided ineffective assistance by failing to move to suppress, and no prejudice to defendant from a failure to move to suppress.
D. Admission of Evidence Code Section 1108 Evidence
Defendant claims the trial court erred in admitting evidence of two uncharged offenses—defendant’s school bus touchings of Antoinette and Cynthia. He claims these incidents should have been excluded as more prejudicial than probative pursuant to Evidence Code section 352.
Initially, defendant also objected to the introduction, pursuant to section 1108, of a photo album with images of children defendant cut from a magazine. This evidence was admitted pursuant to section 1101, however, and defendant appears to have dropped that claim. In any event, the probative value of the album to show defendant’s criminal intent far outweighs the potential prejudice.
Prior to trial, the prosecution moved in limine to admit evidence of defendant’s prior sexual conduct pursuant to Evidence Code section 1108, subdivisions (a) and (d)(1)(A). The evidence was offered to demonstrate defendant’s sexual interest in young girls and his tendency to touch them inappropriately, facts relevant to his intent for counts one and two. Defense counsel objected, citing Evidence Code section 352, but was overruled. Noting the similarity of the prior acts to the charged conduct, the high probative value, and the lack of probability of juror confusion, the trial court concluded the probative value outweighed the potential prejudice to defendant.
In cases in which the defendant is charged with a sexual offense, Evidence Code section 1108 allows the introduction of evidence of the defendant’s prior sexual offenses to prove the defendant’s propensity to commit sexual offenses. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) Pursuant to Evidence Code section 352, the trial court has discretion to exclude evidence of a prior offense “‘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.’” (Falsetta, supra, 21 Cal.4th at p. 916, italics in original.) In evaluating the admission of prior offenses, the court must consider the act’s “nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission . . . .” (Id. at p. 917.) The Evidence Code section 352 “determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.” (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) We review the trial court’s ruling for abuse of discretion. (See ibid.)
Defendant’s touching of two other school-age girls showed a proclivity for touching young girls entrusted to his care and is relevant to establishing his sexual interest in Kaitlyn (we focus our analysis on Kaitlyn and count one as we have concluded there is insufficient evidence to support the conviction involving Jane). The similarity of the Antoinette and Cynthia incidents to the charged conduct, particularly defendant’s tickling of Antoinette, enhances the probative value. (See generally People v. Robbins (1988) 45 Cal.3d 867, 879-880, superseded by statute on another ground [discussing relevance of similar prior acts to show criminal intent and absence of accident, inadvertence or good faith, in context of Evidence Code section 1101].) The fact that the acts occurred close in time to the charged conduct likewise enhances the probative value. The corroborating evidence regarding the Cynthia incident, consisting of defendant’s own admission that he rubbed her back, increase the certainty that the act occurred. Additionally, the jury was instructed on how to evaluate and weigh the evidence (see discussion in section II.E., infra), and the testimony was brief and straightforward. Indeed, the testimony of the prior offenses constituted only a small percentage of the total trial (23 pages out of hundreds of pages of trial transcript). The burden on defendant to defend against these offenses therefore was not substantial and there was little likelihood the testimony would confuse the jury.
Although potentially damaging to defendant, the evidence was not highly prejudicial within the meaning of Evidence Code section 352. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. . . . The ‘prejudice’ referred to in Evidence Code section 352 applies 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. Karis (1988) 46 Cal.3d 612, 638.) As noted, the similarity of the circumstances surrounding the prior offenses and the charged conduct ensure that they are more than minimally relevant to the issues before the jury. Moreover, presented with defendant’s extensive child pornography collection, admission of arousal at viewing children engaged in sexual conduct, and his homemade videotapes, the additional evidence that defendant rubbed a child’s back and tickled a school-age girl is unlikely to evoke a strong emotional bias against defendant. Compared to the other facts presented, Klein’s account and Antoinette’s interpretation of defendant’s touching—which defendant contends is “much more inflammatory” than Kaitlyn’s—are not particularly salacious. There is no indication, for instance, that defendant touched the girls’ private parts, that either girl was harmed, or that either girl believed defendant had a sexual intent. Not only does this lessen the emotional impact of the testimony, but also decreases the risk that the jury would be motivated to punish defendant for this uncharged conduct.
The trial court’s admission of the uncharged offenses was not “arbitrary, capricious or patently absurd” and we find no abuse of discretion. (See People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
E. CALJIC No. 2.50.01
Defendant argues that the court erred in failing to identify the “prior sexual offenses” in instructing the jury. He contends the court had a sua sponte duty to refer specifically to the Antoinette and Cynthia incidents in providing CALJIC No. 2.50.01.
CALJIC No. 2.50.01, as given by the trial court, states: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [¶] ‘Sexual offense’ means a crime under the laws of a state or of the United States that involves any of the following: [¶] A. Any conduct made criminal by Penal Code section 288(a). The elements of this crime are set forth elsewhere in these instructions. [¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [¶] You must not consider this evidence for any other purpose.”
The People contend that defendant’s argument was waived by his failure to request a clarifying or amended instruction in the trial court. (See People v. Valdez (2004) 32 Cal.4th 73, 113; People v. Hart (1999) 20 Cal.4th 546, 622.) “Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218.) In contrast, “[e]even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury’s understanding of the case.” (People v. Roberge (2003) 29 Cal.4th 979, 988, internal citations and quotations omitted.) The obligation to instruct the jury on a general principle of law “comes into play when a statutory term does not have a plain, unambiguous meaning, has a particular and restricted meaning, or has a technical meaning peculiar to the law or an area of law.” (Id. at p. 988, internal citations and quotations omitted.)
Defendant does not contend that the court failed to instruct on or to clarify a general principle of law. Defendant instead contends that the court failed to include a specific reference to the uncharged offenses in an otherwise correct instruction. According to defendant, CALJIC No. 2.50, which was given in this case to address the photo album admitted pursuant to Evidence Code section 1101, is an example of the type of reference that should have been included: “Evidence has been introduced for the purpose of showing that the defendant engaged in conduct other than that for which he is on trial, namely, possession of a photo album.” (Italics added.) The allegedly missing element is not a general principle of law, but an amendment or clarification to the standard instruction prompted by the specific facts of the case. We therefore agree that defendant has waived this instructional claim.
We further note that it is unlikely the lack of specificity led to juror confusion or to misapplication of the law. During closing argument, the prosecutor explained the relevance of the uncharged offenses to count one and tied the testimony relating to those offenses to CALJIC No. 2.50.1 by reiterating some of its language. (See People v. Kelly (1992) 1 Cal.4th 495, 526 [relying in part on counsel’s argument to conclude it was unlikely the jury misunderstood the law].) Defense counsel likewise referred to the alleged relevance of the Antoinette and Cynthia evidence to the charged conduct, and to the preponderance of the evidence standard set forth in CALJIC No. 2.50.1. Finally, the information and jury instructions unambiguously identify the victims of the charged conduct as Kaitlyn and Jane, not Antoinette or Cynthia. Defendant’s assertion that the jury had no basis for distinguishing between the charged and uncharged offenses is without merit.
We reject defendant’s claim of instructional error.
III. Disposition
The judgment is reversed, and the matter is remanded for re sentencing.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.