Opinion
F075151
10-25-2021
THE PEOPLE, Plaintiff and Respondent, v. CARSON BILLINGS, Defendant and Appellant.
Nuttall Coleman and Drandell, Nuttall & Coleman and Roger T. Nuttall; Page Law Firm and Edgar E. Page for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F11904170. Jonathan B. Conklin, Judge.
Nuttall Coleman and Drandell, Nuttall & Coleman and Roger T. Nuttall; Page Law Firm and Edgar E. Page for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P.J.
INTRODUCTION
In 2016, a jury convicted appellant Carson Billings of one count of possession or control of child pornography (Pen. Code, § 311.11, subd. (a)). The trial court suspended imposition of judgment and sentence, and appellant was placed on formal probation for three years. Appellant was ordered to serve 340 days in jail custody. With time credits, appellant had 54 days left to serve, and the court permitted him to complete that time in the adult offender work program. Appellant was required to register as a sex offender and attend a sex offender treatment program, among other terms and conditions.
All future statutory references are to the Penal Code unless otherwise noted. At the start of trial, the prosecution dismissed a charge of exhibiting a minor in pornography under section 311.1, subdivision (a) (count 2), and a charge of exhibiting a minor in pornography under section 311.2, subdivision (c) (count 3).
Appellant contends his judgment should be reversed. He argues his conviction was based on the false and/or misleading testimony from the prosecution's computer expert who forensically examined his laptop and located files that depicted child pornography. Stemming in large part from that alleged false testimony, appellant raises numerous claims, including prosecutorial misconduct, a Brady violation, instructional error and cumulative error. He also maintains the lower court erred in denying a number of motions, including one for a new trial based on insufficiency of the evidence.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
We determine appellant was not convicted based on false and/or misleading testimony. The record overwhelmingly and conclusively establishes that appellant knowingly possessed or controlled child pornography in violation of section 311.11, subdivision (a). We reject his claims and affirm.
BACKGROUND
It was undisputed at trial that child pornography files existed on appellant's laptop. At trial, appellant claimed he had not intended to download the child pornography that law enforcement discovered on his laptop. He told the jury he was searching for adult pornography and the illegal images were downloaded without his knowledge. He claimed he had immediately deleted the illegal files upon discovering them.
Based on the verdict rendered, it is apparent the jury rejected appellant's assertion that he had accidentally downloaded the child pornography. We summarize the material trial evidence but provide additional facts later in this opinion when relevant.
I. Appellant Used A Peer-To-Peer File Sharing Program To Download Child Pornography.
Appellant used a peer-to-peer file sharing program to locate and download the child pornography. Such a program connects a user over a network with other people worldwide. The peer-to-peer program allowed appellant and the other users to exchange files "back and forth anonymously."
Appellant had both "Limewire" and "Frostwire" on his laptop, which are similar file sharing programs. Users typically use these programs to share copyrighted music and movies. Appellant was on the "Gnutella" network when he used the file sharing program to download the child pornography.
With a peer-to-peer file sharing program, an individual does a search, much like a Google search, using file names or keywords. The individual receives a list of file names which can be downloaded. Individual files can be downloaded, or multiple files can be highlighted and simultaneously downloaded. When enough of a particular file has downloaded to the individual's computer, he or she can click on it to preview its contents. The peer-to-peer program will store a partially downloaded file in a temporary folder (called the "Incomplete folder") until the file is completely downloaded. The program then automatically moves the downloaded file to a different folder.
II. Law Enforcement Begins To Investigate Appellant.
Using a Web-based application known as the "Child Protective System" (CPS), law enforcement was monitoring the peer-to-peer network for child pornography. CPS searches for images and videos of known child pornography based on a "digital signature" that exists for each known child pornography file.
The "digital signature" is based on "hash values" that exist for each image or video.
On January 4, 2011, Kevin Wiens was employed with the Fresno County Sheriff's Department, and he was working on a federally funded task force that investigated Internet crimes against children. The task force was housed in the office of the Department of Homeland Security (DHS). Wiens logged into CPS and he located an Internet protocol (IP) address that was sharing suspected child pornography over the peer-to-peer network. Wiens focused on this address based on the number of files it was sharing "at the time."
The jury learned that an IP address is "a digital representation of a physical location where someone is accessing the Internet, in essence, like your home address."
Based on the digital signatures, Wiens was able to compare the suspected child pornography files with images from law enforcement's database. Wiens concluded that child pornography existed at that particular IP address.
III. Law Enforcement Seizes Appellant's Laptop.
Using an administrative summons in January 2011, law enforcement discovered the physical address where the suspected child pornography was being shared over the peer-to-peer network. Appellant resided there, and law enforcement obtained two search warrants, one for appellant's vehicle and another for the residence.
On March 30, 2011, law enforcement executed the search warrants, and appellant's laptop was seized. That same day, Wiens did an initial review of the contents of appellant's hard drive. Wiens removed the hard drive from the laptop, and he plugged it into a device that prevents the hard drive from altering its information. Wiens accessed the hard drive by plugging it into his "computer forensic laptop" and he conducted "a preview of the contents of the hard drive utilizing different tools" to determine if evidence of a crime existed. Wiens told the jury that, when he did his initial review of the hard drive, he located files that he recognized to be known child pornography. Appellant's laptop was booked into evidence.
IV. Appellant Admits To Law Enforcement That He Had Viewed Child Pornography.
On the day appellant's laptop was seized, two federal agents, Timothy Kotman and John Kuzma, interviewed appellant in a conference room. An audio recording of the interview was moved into evidence at trial (People's exhibit 1A) and played for the jury.
We provide greater detail about this interview later in this opinion when we address appellant's claim that his statements to law enforcement should have been suppressed.
Around the time appellant was being interviewed, another agent was searching his vehicle and appellant's laptop was seized.
During this interview, the agents informed appellant they were investigating the possession of child pornography. They told appellant that their computers had identified his residence as a possible source. After initially hesitating in providing any information, appellant eventually told the agents they would probably find files on his computer from the day before. He admitted he knew it was "not right. Like, morally I know this is wrong." Kuzma asked appellant if he understood that "real kids" were involved. Appellant answered, "Urn-hum" and explained that after he sees it, "[I]t's like this is wrong. I should not see this."
Appellant told the agents he had used the search term "P-E-D-O" to locate files on the peer-to-peer program. He claimed he did not know why he did it but he was perhaps looking for 16- and 17-year-old girls. He said he "couldn't really find" what he wanted. However, appellant admitted during his interview that some of the files he did find contained children younger than 16 or 17 years of age. He said he did not like that, and he found it "very offensive." Appellant explained he would swipe "a bunch of stuff" and click the download button. According to him, a lot of "random stuff" would come with a download.
Appellant indicated he viewed adult pornography at night, and the frequency of those viewings depended on his level of stress. He stated he would view child pornography in "bursts. Like, it would be a year, and then it would be four or five days, four or five afternoons or evenings, and then it will be gone for six, seven months." He admitted during his interview he had watched child pornography "a couple of times" but he claimed he did not like it. He said he "did it a little bit" that year "and this last year a little bit more," but he did not do it constantly. He stated he had "done it several times, stopped a year or two," but he became "curious again." He told the agents he could not explain why he looked at it.
Appellant told the agents that child pornography did not really arouse him. He stated, "I think I'm going to be, but I'm not." "I look at it and then I-I don't know why I'm looking at it, and I do something else." Appellant explained that some "normal pictures" would get downloaded, too, which he would find "so much better." He would ask himself," 'Why am I looking at this?'" Appellant admitted to the agents he had previously "started to" masturbate to child pornography, but he said, "it doesn't do it for me." He stated, "[I]t's just one of those odd things that I think I'm going to like to see, and I don't." Appellant said he would like to know why he thinks he is going to like it sometimes. He explained to the agents that "99 percent of the time I'll tell you it's wrong."
Kotman asked if appellant had been looking at child pornography "more consistently" in the prior three or four months. Appellant responded, "That's probably- probably when you found it." Appellant continued, "You know, it's been at night and then not, and then a couple nights later did it again."
Appellant said that, if he was downloading a video of a six-year-old girl, he would not finish downloading it. He stated, "That would be a delete, click." He said he would "scan" the files he downloaded to see if he was interested in keeping any. He claimed he deleted all child pornography and he did not want to see it. He specifically claimed he had deleted all of the files he had downloaded the night before his interview with law enforcement.
V. The Forensic Evidence.
At trial, it was undisputed that child pornography files existed on appellant's laptop. Both Wiens and appellant's forensic computer expert, Marcus Lawson, found child pornography. Both Wiens and Lawson had conducted their forensic reviews using the same version of EnCase, a software tool that is utilized to examine data on a hard drive.
In February 2013 the parties entered into a stipulation allowing for a "forensic working image of the hard drive taken from [appellant's laptop] to be provided" to appellant's computer expert. At trial in 2016, both Wiens and Lawson testified they had forensically reviewed a copy of appellant's hard drive.
Neither Wiens nor Lawson were EnCase certified.
A. Wiens's forensic findings.
On three different occasions, Wiens forensically examined a copy of appellant's hard drive using EnCase. Wiens determined that appellant's laptop had been equipped with two different (but very similar) peer-to-peer file sharing programs.
Wiens testified that he found over 7, 500 files on appellant's laptop that had been downloaded through a peer-to-peer file sharing program. Wiens located 18 viruses on appellant's laptop. He researched all 18 of those viruses and determined that none of them were capable of using a peer-to-peer program "to type in key words into the search term, manually click on files of suspected child pornography, and then request those files to be downloaded on to the user's computer."
Wiens discovered a total of 19 child pornography files. He opined that 17 of these files had not been deleted, and two of these files had been deleted. Wiens also located 13 files which contained child erotica. We summarize Wiens's findings.
Wiens's opinion that 17 of these files had not been deleted is the focus of appellant's arguments that Wiens provided false and/or misleading testimony.
1. The 17 illegal files downloaded on March 29, 2011, that had not been deleted.
Wiens found six illegal image files and 11 illegal video files. All of these files had been saved or created on appellant's laptop on March 29, 2011. Wiens opined at trial that appellant had not deleted these files.
a. The 11 illegal video files.
The 11 illegal videos depicted prepubescent children engaging in sexual acts with adults, including intercourse and oral copulation. These videos were all located in the temporary "Incomplete" folder, and represented files that had not completely or fully downloaded. Wiens was able to determine that at least some of the videos had been previewed as they were downloaded. However, there was no precise way to know how long appellant may have previewed the videos.
Wiens testified that the videos he found in the Incomplete folder contained titles that were very descriptive of the respective content. Many of the titles contained a term (PTHC) which stood for "preteen hard core." Many of the titles also had the term "pedo" in reference to pedophilia. Wiens explained that this term was typically used in file names that depict prepubescent children. In addition, the various titles displayed words that suggested their illegal content, such as: stripping; sucking; kiddy; illegal; underage; preteen; and fucking. Some of the titles suggested the age of the child or children seen in the videos, using terms like "8y" or "9yo" or "10yo" or "11yo" or "12yo[.]"
b. The six illegal image files.
The six child pornography images were located in a folder titled "desktopsave" on appellant's laptop. Wiens told the jury he was able to open the files in the desktopsave folder without any special software. The six images were created or saved on appellant's laptop on March 29, 2011.
According to Wiens, it was impossible to determine whether appellant had manually transferred the illegal images into the desktopsave folder or whether the file sharing program had automatically made that transfer once download was complete. In contrast, Lawson testified that appellant never manually transferred the illegal files into the desktopsave folder, and it was the file sharing program that made this transfer.
Like the videos, the titles for the six images had very descriptive language that suggested illegal content. The titles had words and terms such as: spread; pussy; underage; child; childsex; pthc; pedo; cum; ass; lolita; preteen; young; and kiddy. In addition, a few of the titles suggested the age of the children appearing in the various images, using terms like "9yo" and "12yr old[.]"
Wiens opined that the titles for all of the files summarized above would have been visible to appellant when he was downloading them. Wiens could not confirm when these illegal files had been downloaded to the laptop, only that they were saved or created in the shared folder on March 29, 2011. However, he believed it was more likely that the files in the Incomplete folder had been downloaded on a peer-to-peer sharing program because that was a "common temporary storage location for files" from a sharing program.
Wiens prepared a compilation of images and videos taken from some of the illegal files that he had discovered on appellant's laptop. That compilation (People's exhibit 6) was shown to the jury.
2. The two deleted child pornography files.
In addition to the 17 files containing child pornography, Wiens discovered two other child pornography files on appellant's laptop. Unlike the other 17 files, Wiens told the jury that these two had been deleted. On cross-examination, he agreed that these two files had been in "unallocated" space, and he had used his "special forensic software" to recover them.
Wiens prepared his first forensic report in June 2011. After the preliminary hearing (which occurred in February 2012), he discovered that two child pornography "video files" had been deleted. In December 2012, Wiens issued a second report wherein he disclosed this information.
3. The child erotica files.
In addition to the illegal material discussed above, Wiens told the jury that he also found 13 child erotica images on appellant's laptop. Wiens described this material as involving victims whose ages were difficult to judge (but could be prepubescent children). The victims were "maybe posed topless in various stages of undress, typically not engaged in a sex act with either an adult or another minor. I do categorize those separately, because typically we don't use those as part of our charging on our cases." Wiens agreed on cross-examination that some of these erotica images could have depicted girls between the ages of 15 through 18.
B. Lawson's forensic findings.
Lawson testified at trial that he had also located child pornography on the copy of appellant's hard drive. Lawson agreed that child pornography was located on appellant's laptop on March 29, 2011, from at least 11:12 p.m. until 11:39 p.m. Lawson believed that, on that night, appellant had downloaded about 145 files. It took about 42 minutes for all of these files to download.
The trial court designated Lawson as "an expert in the area of computer forensics" and as "an individual who is able to recognize child pornography."
The record implies that most of the 145 files downloaded on March 29, 2011, did not involve child pornography. Some of the downloaded files contained adult pornography.
Lawson found nine playable videos in the Incomplete folder and eight images that he could see, although these images were "pixilated in different colors" and difficult to make out. Lawson was only able to view these files through EnCase. Lawson stated that five of these videos showed adult women, and two of the files may have been duplicates, if he recalled correctly. Of the eight images, five depicted child pornography, while two showed adults, and he could not reach an opinion regarding the final image. Lawson testified that some of the video titles were deceptive in that they appeared to depict child pornography but the content inside depicted adults.
Lawson said he was able to view the six images that Wiens had found. However, although Lawson found all 11 of the illegal videos that Wiens identified, Lawson was only able to play four of them. His video player would not play the remaining seven.
Lawson agreed that the titles of the files were "indicative" of child pornography. He agreed that (based on EnCase) many of the files in the Incomplete folder had been previewed, including files depicting child pornography.
According to Lawson's analysis based on EnCase, appellant had created the initial file in the desktopsave folder on March 29, 2011, at 11:12 p.m. The last file created in that folder occurred that same night at 11:32 p.m. Appellant deleted those files at 11:39 p.m. In the Incomplete folder, appellant created the earliest file at 10:57 p.m. that same night. Files that contained child pornography videos were created at 10:57 p.m., 11:03 p.m., 11:05 p.m., 11:09 p.m., 11:11 p.m., 11:32 p.m., and 11:33 p.m. The files in the Incomplete folder were all deleted at 11:39 p.m.
Lawson testified that the time it takes to download a particular file can vary depending on its size, the network, and other factors associated with using a file sharing program.
Lawson agreed with the prosecutor's assessment that "it would appear" appellant's "MO" was to look at child pornography and then "shortly thereafter" delete it. Lawson also agreed appellant had done this same thing in or around February 2011.
VI. Appellant's Trial Testimony.
Appellant testified at trial that he did not intend to download child pornography on March 29, 2011. He began downloading files that night around 10:57 p.m. He agreed that he downloaded, or was in the process of downloading, about 145 files. He claimed he deleted everything at around 11:39 p.m.
Appellant testified that he did not believe all 145 files were downloaded to his laptop.
Appellant told the jury he had been looking for adult pornography. He denied looking for images depicting prepubescent children being sexually abused. He claimed he had truthfully told Kotman during the police interview that he was not interested in child pornography, and he had deleted those files.
Appellant testified that he had first encountered adult pornography when he was eight or nine years old.
Appellant testified that a button said" 'download all'" and he pushed it not really knowing what files he might receive. He denied selecting any particular file that contained explicit terms in its title. He believed he would see adult pornography. He thought he "might" see images of girls aged 16, 17 or 18. He claimed he "didn't think about" whether there might be images of child pornography in the files being downloaded. He denied looking for people aged 16 or 17 engaged in sexual intercourse.
Appellant testified that, as the files were being downloaded to his laptop, he would "glance through" them and he "realized it was nothing that I would ever want, so I deleted it." He explained that he "selected everything" and he "right clicked and deleted." He denied intending to save or possess any of these images or videos. He agreed that, when he would glance at a file and then move on to another file, it was his intent to ultimately delete everything.
Appellant denied "specifically" seeing any of the child pornography images which the prosecution had shown to the jury. He claimed that, if he had seen those files, he "would have deleted them as quickly as possible."
Appellant told the jury that, when he deleted the files, they were no longer playable or viewable to him. He claimed he had no intention of retrieving them, and he had no special software to do so.
On cross-examination, appellant admitted he was "not sure" if March 29, 2011, was the first time he had downloaded child pornography to his laptop. When confronted with the fact that his own computer expert had found child pornography titles on the copy of his laptop's hard drive from February 2011, appellant still maintained that he was "not sure" if he had previously downloaded child pornography. He was also "not sure" what those other prior files were.
Appellant denied ever telling the agents he had been looking for child pornography on the Internet for several years. Appellant claimed that, when he had been speaking with the agents, he had been talking in general about using Frostwire, one of the peer-to-peer file sharing programs. However, he also admitted at trial that he was "not sure" what he had said to the agents.
Appellant denied that anyone else had used his laptop. He said it was "possible" he had been downloading files on a peer-to-peer program as far back as 2009 and 2010, and child pornography files had been downloaded during that time and then deleted by him.
Appellant testified that, in 2011, he was "unaware" what the term "pedo" meant. However, he acknowledged telling the agents he had looked up that term in an urban dictionary. Appellant agreed at trial that none of pedo's definitions suggested it would lead to adult pornography. He claimed he could not recall what search term he used on March 29, 2011, to find the files he then downloaded.
Appellant testified it was "possible" he had seen some of the explicit titles suggesting child pornography that were being downloaded to his laptop on March 29, 2011. In general, appellant admitted he had previewed some of these files being downloaded that night, but he denied knowing for certain if he had previewed any particular illegal file that had been shown to the jury. He admitted that, prior to March 29, 2011, other child pornography files had been downloaded to his computer, and he had deleted them.
VII. The Experts Disagreed At Trial Whether Appellant Had "Deleted" All Of The Child Pornography.
Despite agreeing that child pornography existed on appellant's laptop, Wiens and Lawson disagreed whether or not appellant had "deleted" all of it. Wiens opined that appellant had not deleted 17 of the illegal files he had downloaded on March 29, 2011. Wiens opined, however, that appellant had deleted two illegal video files. In contrast, Lawson testified that appellant had deleted all of the child pornography files "within moments after they were downloaded."
Prior to trial, Lawson had executed three different declarations which were filed in support of various motions. In general, Lawson opined in these declarations that appellant had deleted all of the illegal files. At trial, Wiens said he had never reviewed Lawson's declarations.
In general, this dispute involved a technical discussion of how a hard drive stores information, and how that information is retrieved. We summarize the key components of the experts' dispute, which is crucial to some of appellant's arguments on appeal.
A. Wiens's testimony regarding the deletion of the illegal files.
At trial, Wiens explained that a saved file is "allocated or assigned to a specific location." If that file is placed into the computer's "recycle bin" or "trash can," it then resides in a different file location. If the user empties the recycle bin, that information is moved into "unallocated space" on the hard drive where it will stay until it is eventually overwritten by some other large piece of data. Eventually, such a file will completely disappear and be unrecoverable from the computer. Wiens indicated that, once a file is moved into unallocated space, a program is needed to find it. The program could be forensic software, but "over-the-counter" software is also available.
According to Wiens, the 17 illegal files that were not deleted were located in allocated folders (the Incomplete folder and the desktopsave folder), and they "still had a file path that represented the exact location of where they existed." Wiens told the jury that he had been able to play and view these files without any special tools. Wiens believed appellant could still access those files on his laptop, and those files were still viewable.
Wiens admitted he had used EnCase to extract the illegal files, but he said he did not use EnCase to view them. He claimed he could access the 17 illegal files without EnCase because he had opened them and viewed them from their respective folders. Wiens said it was inaccurate to say the illegal files were "deleted" and "unviewable" because he had been able to view the illegal material after extracting them with EnCase.
B. Lawson's testimony regarding the deletion of the illegal files.
In contrast to Wiens's testimony, Lawson told the jury that appellant had deleted all of the child pornography files. Lawson indicated that a deleted file should not be considered playable or viewable even though that file could still be recovered by forensic software. According to Lawson, some of the illegal files in this matter were viewable, but most were not. Lawson explained that those files that were viewable had been "reassembled" so that "bits and pieces" could play. Lawson told the jury that appellant lacked the special software needed to view these files.
Lawson explained to the jury that, when he said a file is deleted, that means the user had taken some action to remove the file in such a way that it can no longer be viewed without forensic software. This was more than placing a file in the computer's recycle bin, which could still be recovered by the user. Instead, the user had to delete the file. Lawson referred to files that have been deleted and unavailable to the user (without forensic software) as "structured unallocated files." "Structured unallocated" is a term his office coined for items that are deleted, but still retain file information recoverable by forensic software.
Wiens testified that the term "structured unallocated" was "contradictive." Wiens had never before heard of that term.
Lawson acknowledged to the jury that he understood he had essentially called Wiens a liar, but his intention was to point out that Wiens had made a mistake or perhaps he did not understand what "deleted" means in EnCase. Lawson said his examination clearly showed that the illegal files had been deleted.
The prosecutor asked Wiens to respond to Lawson's criticisms. According to Wiens, Lawson's EnCase screen shots showed that the illegal files were still allocated to the "[d]esktopsave" and "Incomplete" folders. According to Wiens, he could click on those files and view them, so they were not deleted and they were viewable.
VIII. The Dispute Involving EnCase.
EnCase, the forensic program that Wiens and Lawson used to examine their respective copies of appellant's hard drive, was also a point of disagreement at trial. We summarize the relevant trial testimony regarding EnCase.
A. Wiens's testimony regarding EnCase.
Wiens testified that EnCase is a "tool" that provides "guidance of where to look." According to Wiens, EnCase does not give a definition of deleted. Instead, if Wiens could click on an image or a video within a file, he considered it "still viewable" and it was "still allocated to a file folder." Wiens confirmed that if a user deletes a file, that does not mean it is deleted forensically.
Wiens explained that EnCase shows a file is still allocated to a file location, which meant that file is not deleted. Appellant's 17 illegal files were still "allocated" and in a location with a file path, making them viewable. Wiens agreed that his definition of a "deleted file" means the file still retains its information.
Wiens admitted at trial that EnCase has certain symbols and columns that represent if a file has been deleted. However, Wiens did not believe EnCase could represent whether or not someone had pressed the delete key and deleted a file.
Wiens agreed with defense counsel that it is possible to modify the columns that are displayed when using EnCase. Wiens also testified that there are "many different variables" regarding the settings one can use with EnCase. Wiens could not recall how his "columns were set up" when he conducted his analysis. Wiens could not recall if EnCase had shown symbols that indicated files were deleted. He stated, "But what I do in any case is look to see if the files are viewable. And in this particular case they were." Wiens agreed he had viewed the files using EnCase, but the illegal files "were still allocated to a folder."
Appellant notes in his briefing that he never received Wiens's EnCase reports or manuals. During trial, the prosecutor represented to the court that "the forensic report that has been provided is the compilation of [Wiens's] EnCase results. There is no raw data beyond that, so everything has been provided."
B. Lawson's testimony regarding EnCase.
During his forensic review, Lawson had prepared screen shots showing his use of EnCase. Lawson's screen shots were moved into evidence at trial. According to Lawson, his screen shots showed that appellant had deleted all of the illegal files. Lawson could not understand how Wiens could testify that the illegal files were not deleted. Lawson told the jury this was the only occasion he had seen where a dispute existed whether or not files had been deleted.
Lawson opined that Wiens should have known that the illegal files had been deleted. He told the jury it was "very inaccurate" and misleading for Wiens to say a file was not deleted if it could be found with forensic software. According to Lawson, EnCase provides multiple ways to show that a file had been deleted. Lawson reiterated that, based on EnCase, appellant had deleted the illegal files.
DISCUSSION
We address appellant's various claims generally in the order that they occurred during the prosecution below. Before turning to those issues, however, we first discuss appellant's assertions that Wiens testified beyond the scope of his expertise, and Wiens provided false and/or misleading testimony. We conclude that Wiens did not provide false and/or misleading testimony, and appellant was properly convicted.
I. Appellant Was Not Convicted Based On False And/Or Misleading Testimony; In Any Event, There Is No Reasonable Likelihood Any Alleged False Testimony Could Have Impacted The Jury's Verdict.
Throughout his briefing, appellant argues that Wiens provided false and/or misleading testimony. According to appellant, Wiens improperly opined that appellant had not deleted the illegal files. Appellant contends this testimony created the impression that he (appellant) could still access those deleted files on his laptop without using any special software.
In general, appellant relies on four matters to establish that Wiens testified falsely: (1) the report from CPS that showed no illegal files were logged at appellant's IP address in March 2011; (2) Lawson's EnCase screen shots that showed the illegal files had been deleted; (3) various excerpts from documents regarding EnCase (about which appellant requested the trial court to take judicial notice); and (4) Lawson's trial testimony that this was the only case where the prosecution's expert testified that files were not deleted when EnCase indicated the files had been deleted.
We remind the reader that "CPS" refers to the Web-based application (Child Protective System) that law enforcement used to monitor the peer-to-peer network for child pornography.
Appellant also notes that law enforcement used a search warrant in this matter which stated that deleted files are "usually inaccessible without the use of specialized forensic tools and techniques" and a "qualified forensic examiner" may access those files "from the unallocated and slack space" on a computer's hard drive. Appellant argues this language from the search warrant is further evidence the prosecution knew or should have known appellant had deleted the illegal files because Wiens had used EnCase to access them.
Appellant maintains a dispute should never have occurred regarding whether or not the illegal files were deleted, accessible and/or viewable. He argues that the prosecutor minimized and excused Wiens's alleged untruthful and misleading testimony.
Finally, appellant argues that Wiens "refused to yield" from his position that the illegal files were accessible to appellant, and Wiens had to be impeached that he had only accessed the files through EnCase, a special forensic tool. Appellant contends Wiens's testimony "clouded the issue" and created "false scenarios" that impermissibly impeached appellant's repeated claims that he had deleted the files. Appellant argues that, without EnCase, Wiens could not have accessed the illegal files.
We reject appellant's arguments. We first summarize certain comments the trial court made regarding this dispute. We then summarize the requests for judicial notice which appellant filed below, and we determine we will not consider that information. We then reject appellant's assertion that Wiens testified beyond the scope of his expertise, or that Wiens provided false and/or misleading testimony. Finally, we conclude there is no reasonable likelihood any alleged false testimony could have impacted the judgment.
A. The trial court's statements regarding this dispute.
During motions in limine, appellant asserted that the prosecution had been put on notice that Wiens had testified untruthfully at the preliminary hearing. Appellant asked the trial court for an order requiring the prosecution to "correct any testimony by an[y] of its witnesses" who were "not truthful before the defense cross-examines the witness." In ruling on this motion in limine, the court stated it would never allow false testimony to be presented knowingly. However, the court believed this was "clearly a difference of opinion" between the two experts. The court ordered the parties not to accuse a witness of testifying falsely if that was based on a difference of opinion between experts. However, the court confirmed that the defense could impeach Wiens's testimony, and the defense could argue to the jury that Wiens had lied. The court noted it seemed logical that the defense would present its own witness to say that the illegal files had been deleted. The court granted the motion in limine, ruling it would not allow witnesses to testify untruthfully. However, the court stated its belief that this matter involved "battling experts" and the defense could either confront Wiens with contrary evidence, or the defense could present its own expert witness and then recall Wiens and ask if his opinions had changed in light of the defense expert's opinions.
B. After his conviction, appellant filed two separate requests for judicial notice with the trial court; In resolving this appeal, we will not consider the information contained in those two requests for judicial notice.
After appellant was convicted in this matter, he filed two separate requests for judicial notice in the trial court. We summarize those requests.
1. The first request for judicial notice.
After he was convicted, appellant filed a motion seeking a new trial. Supporting appellant's motion was a request for judicial notice which was filed June 27, 2016. This request contained excerpts from (1) a user's guide for EnCase and (2) a publication regarding digital forensics and investigation. Appellant asserted that these materials were relevant because the user's guide showed that Wiens "deliberately ignored" three columns which EnCase used to show the files had been deleted, or Wiens purposefully selected other columns and hid that information. According to the defense, the other publication states that when EnCase recovers deleted files, it no longer considers the associated data to be in unallocated space.
The prosecution filed a written opposition to appellant's request for a new trial. In opposing that motion, the prosecution objected to the trial court taking judicial notice of appellant's documents.
In August 2016, the trial court ruled on appellant's motion for a new trial. At the hearing, the defense asked to file additional material. The defense proffered to the court that these materials established that the illegal files had been deleted. The court permitted the defense to file the additional materials. The court then denied the motion for a new trial. The court's ruling, however, was silent concerning the request for judicial notice regarding the excerpts from (1) a user's guide for EnCase and (2) a publication regarding digital forensics and investigation.
Appellant does not assert that we should review the additional material which he submitted at the hearing. Instead, his arguments focus on the documents that were filed in his two requests for judicial notice.
2. The second request for judicial notice.
In January 2017, appellant filed a request to continue sentencing, and he filed another request for judicial notice. The second request for judicial notice contained excerpts from an official study guide for EnCase. The defense represented that this material gave insight into how EnCase uses "columns" to present information stored on a computer. This material also showed that "a particular procedure" is available through EnCase which allows a forensic examiner to view the contents of a suspect's computer "in the same manner" as the suspect had viewed it. "Finally, the material establishes that a forensic analysis of a computer should include viewing the suspect's computer in the same manner in which that individual viewed it, either through using the EnCase procedure or by making a mirror copy of the computer hard-drive and restoring that information on another computer."
At the sentencing hearing, defense counsel asserted that the newest request for judicial notice could prompt a motion for reconsideration of the denial for a new trial. The trial court denied the motion to continue the sentencing hearing. The court did not specifically rule on the request for judicial notice. The court continued with sentencing.
3. We will not consider the materials presented in the two requests for judicial notice filed in the trial court following the jury's verdict.
In his opening brief with this court, appellant contends that the documents which he filed as part of his two requests for judicial notice provide "additional evidence" to demonstrate that Wiens's testimony at the preliminary hearing and at trial "was contrary" to EnCase's actual abilities.
We conclude that the trial court impliedly denied both of these requests for judicial notice. In so holding, we acknowledge that the court did not comply with Evidence Code section 456, which provides that "the court shall at the earliest practicable time so advise the parties [of its denial of a request for judicial notice] and indicate for the record that it has denied the request." We also recognize that in some instances, courts have concluded that a request was impliedly granted, where there was no specific denial by the trial court, there was no objection to the request, the request concerned a matter for which judicial notice was proper, and it was evident that the trial court relied on the requested material. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 889; Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910, 918-919.)
Here, the prosecution objected to appellant's first request for judicial notice. Further, there is no indication from the record that the court relied on any of the requested documents. Finally, appellant has not filed a request for judicial notice in this court regarding these materials. We decline, therefore, to consider any of this information, which was never moved into evidence below or taken under judicial notice.
Appellant did file a request for judicial notice regarding other information. We deal with that request later in this opinion at section VII, subsection B of the Discussion.
In any event, we also determine that even if these documents were considered on appeal, they would not alter our conclusions that Wiens did not testify beyond the scope of his expertise, and he did not provide false and/or misleading testimony. Likewise, these documents would not alter our decision that there is no reasonable likelihood the alleged false and/or misleading testimony could have impacted the jury's verdict.
C. Wiens did not testify beyond the scope of his expertise, and he did not provide false and/or misleading testimony.
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Evid. Code, § 720, subd. (a).)
1. Appellant does not challenge the trial court's designation of Wiens as an expert witness in this matter.
When a preliminary showing is made that a proposed witness has sufficient knowledge to qualify as an expert, "questions about the depth or scope of his or her knowledge or experience go to the weight, not the admissibility, of the witness's testimony." (People v. Jones (2013) 57 Cal.4th 899, 949-950.)
Here, Wiens was designated as an expert in both computer forensics and in identifying prepubescent minors. This designation occurred after the prosecutor reviewed with Wiens his qualifications and training, his prior work as a computer expert in other court proceedings, his certifications, and his professional associations. Prior to the court designating Wiens as an expert, defense counsel conducted voir dire examination of him.
This record demonstrates that Wiens was qualified to render expert opinions in appellant's trial regarding computer forensics and the identification of prepubescent children. We note that appellant does not challenge the trial court's ruling that designated Wiens as an expert witness in this matter.
2. We agree with the trial court's assessment that this was a battle of experts.
Unlike a layperson, whose testimony must be based on personal knowledge (Evid. Code, § 702, subd. (a)), an expert may base his opinion on any matter made known to him at or before the hearing, provided only that the facts are of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject. (Evid. Code, § 801, subd. (b).) An expert's opinion must be based on material that is reliable. (People v. Gardeley (1996) 14 Cal.4th 605, 618, disapproved on other grounds by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) Typically, an expert's opinion is based on facts personally observed or on hypotheses that find support in the evidence. (Pacific Gas And Electric Co. v. G. W. Thomas Drayage & Rigging Company, Inc. (1968) 69 Cal.2d 33, 44; George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 844.)
"The value of an expert's opinion depends upon the quality of the material on which the opinion is based and the reasoning used to arrive at the conclusion. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 31-32.) An expert's opinion does not hold the same credence or integrity as the data underlying the opinion. In other words, an expert's opinion is no better than the facts on which it is based. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.) A jury is instructed that it may disregard an expert's opinion, even if uncontradicted, and draw its own inferences from the facts. (Ibid.) If an expert's opinion is contradicted by the opinion of another expert, "it merely suggests the first expert may have reasoned incorrectly; it does not suggest his general untruthfulness as a witness." (Ibid.) However, if the facts underlying the expert's opinion are proved to be false or nonexistent, the expert's opinion is destroyed and that falsity tends to prove his untruthfulness as a witness. (Id. at pp. 923-924.)
In this matter, Wiens's opinions were not based on facts that have been shown to be false or nonexistent. To the contrary, both experts had the same underlying data, a copy of appellant's hard drive, from which to extrapolate information and render opinions. Although appellant raises concerns regarding how Wiens used EnCase to analyze the underlying data, Wiens based his opinions on his personal observations, and he explained how he conducted his forensic reviews. As such, we reject appellant's assertions that Wiens's opinions lack evidentiary foundation and should be disregarded.
At trial, both Wiens and Lawson agreed that EnCase was merely a "tool" to assist in their respective investigations. Lawson agreed that EnCase does not draw its own conclusions from the underlying data, and a qualified person must interpret EnCase's results. Well before trial, Wiens opined that appellant had deleted two illegal files. At trial, both experts agreed that child pornography files existed on appellant's laptop. Although Wiens and Lawson disagreed whether or not all of the illegal files had been deleted, their opinions were based on their respective analyses and observations of the same data. Although some of Wiens's opinions were contradicted by Lawson, that merely suggests Wiens may have reasoned incorrectly in how he interpreted the underlying information. The disagreement regarding whether or not the remaining illegal files had been "deleted" does not establish or even reasonably imply that Wiens was untruthful as a witness. (See Kennemur v. State of California, supra, 133 Cal.App.3d at p. 923 [a disagreement among expert witnesses does not suggest one expert is untruthful].)
We agree with the trial court that this was a battle of expert witnesses. We decline appellant's invitation to hold that Wiens's testimony was false as a matter of law. This was an issue properly left to the jury to resolve.
3. It was the jury's role to resolve the disputed issues of fact.
Wiens's and Lawson's differing opinions were thoroughly explored and argued to the jury. The trial court instructed the jurors that they were to consider the experts' opinions, but the jurors were not required to accept them as true or correct. The jurors were told to decide what meaning and importance should be given for any expert opinion. The jurors were told to take into account a number of specific factors when evaluating each expert's credibility. The jurors were informed they could disregard any expert opinion they found unbelievable, unreasonable or unsupported by the evidence. Finally, the jurors were instructed that, if the experts had disagreed with one another, the jurors "should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts' qualifications."
Appellant's defense team was able to cross-examine Wiens and impeach his credibility. Moreover, Lawson informed the jury about his concerns regarding Wiens's opinions. According to Lawson, Wiens had either made a mistake or Wiens did not understand what "deleted" meant in EnCase. Lawson said his examination clearly showed that the files in question had been deleted.
Finally, appellant's trial counsel argued this disputed issue to the jury. According to defense counsel, Lawson's expert opinions supported appellant's statements that he (appellant) had deleted all of the child pornography files that he downloaded on March 29, 2011. Defense counsel argued that, in contrast, Wiens "persisted in saying that these files were not deleted." According to defense counsel, Wiens eventually admitted that the EnCase screen shots which Lawson produced had showed that all files had been deleted. Defense counsel asked the jury to consider why Wiens would be so "resistive" and defense counsel suggested it was because Wiens had "a vested interest in the task force" that investigated this crime, and Wiens had prepared grants for its federal funding. Counsel argued that Wiens "finally admitted" that the evidence submitted by Lawson "suggested" the files were deleted, but Wiens would still not accept it. Counsel noted that Lawson had evidence corroborating his position, while Wiens did not produce a hard copy of his work.
Appellant's trial counsel argued to the jury that Wiens had not engaged in "good police work." Defense counsel asserted that the prosecution knew Lawson was disputing Wiens's opinions. According to defense counsel, the prosecution failed to produce evidence that supported its position.
Defense counsel told the jury that appellant never intended to possess or control child pornography. Appellant "wasn't interested in it" and he would delete it. According to defense counsel, that position was supported by Lawson's forensic review. Appellant only had "momentary possession" of the illegal material, which was an accident. According to defense counsel, the only reasonable interpretation of the circumstantial evidence was that appellant did not want child pornography, and he deleted it if he found it. The jury was asked to find appellant not guilty.
The jurors were to judge all questions of fact submitted to them, including the credibility of the witnesses. (§ 1127.) It was the jury's exclusive role to determine the truth or falsity of the determinative facts. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.) The truth or falsity of Wiens's opinions was put before the jurors, and we will not disturb their findings.
We likewise reject appellant's assertion that the materials he provided to the trial court in his two requests for judicial notice establish that Wiens testified falsely. Although those documents may have impeached Wiens's testimony regarding how he used EnCase to analyze the underlying data, our conclusion is not altered that this was a dispute of opinion between expert witnesses.
Finally, we disagree with appellant's assertion that Wiens testified falsely at the preliminary hearing. Wiens stated that, based on his examination, he had no knowledge that any child pornography files had been deleted from appellant's laptop. Following the preliminary hearing, Wiens again reviewed his copy of the hard drive, and he determined that two video files had been deleted. Wiens issued a second police report in December 2012 indicating this new information. Contrary to appellant's assertion, this does not establish false and/or misleading testimony. Instead, this shows a development of new facts through continued investigation. In any event, appellant admits in his opening brief that he was able to impeach Wiens at trial.
Based on this record, appellant's conviction was not obtained through the use of alleged false testimony and Wiens did not testify beyond the scope of his expertise. Instead, this was an issue of credibility for the jury to resolve. A dispute of opinion existed between the experts regarding whether or not appellant had deleted all of the illegal files, and what "deleted" meant in this context. That dispute, however, was fully litigated at trial. Consequently, we reject appellant's repeated assertions that he was improperly convicted. In any event, we also conclude that no reasonable likelihood exists any alleged false testimony could have impacted the jury's verdict.
D. There is no reasonable likelihood any presumed false and/or misleading testimony could have impacted the jury's verdict.
The United States Supreme Court holds that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair. Such a conviction must be reversed if a reasonable likelihood exists the false testimony could have impacted the judgment of the jury. (United States v. Bagley (1985) 473 U.S. 667, 678-679, quoting United States v. Agurs (1976) 427 U.S. 97, 103; see also Napue v. Illinois (1959) 360 U.S. 264, 272 (Napue) [reversing judgment because false testimony used to obtain conviction "may have had an effect on the outcome of the trial"].)
The California Supreme Court holds that "[w]hen the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. This standard is functionally equivalent to the' "harmless beyond a reasonable doubt"' standard of Chapman v. California (1967) 386 U.S. 18. [Citation.]" (People v. Dickey (2005) 35 Cal.4th 884, 909.)
A federal constitutional error is harmless under Chapman v. California, supra, 386 U.S. 18 (Chapman) when the reviewing court determines beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367.) An error did not contribute to the verdict when the record reveals the error was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4.) "The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)
The record in this matter belies appellant's repeated assertions that he was improperly convicted based on alleged false and/or misleading testimony. Instead, it is abundantly clear that, even if we presume Wiens testified falsely or in a misleading manner, there is no reasonable likelihood his testimony could have impacted the jury's verdict. This record overwhelmingly and conclusively establishes that appellant knowingly possessed or controlled images of child pornography in violation of section 311.11, subdivision (a).
This statute read as follows in 2011: "Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment." (Former § 311.11, subd. (a).) This former version is substantially similar to the current version.
1. Appellant expressed a clear consciousness of guilt.
After being informed that law enforcement was investigating whether he had viewed child pornography, appellant admitted to Kotman and Kuzma that law enforcement would probably find files on his computer. He repeatedly informed Kotman and Kuzma that he knew he had engaged in behavior that was wrong. He indicated that he knew "real kids" were involved. He admitted to the agents he had previously "started to" masturbate to child pornography, but he said, "it doesn't do it for me." He stated, "[I]t's just one of those odd things that I think I'm going to like to see, and I don't." He explained to the agents that "99 percent of the time I'll tell you it's wrong."
Appellant's recorded statements clearly express his consciousness of guilt.
2. This was not an isolated incident.
The child pornography downloaded on March 29, 2011, was not an isolated incident, and the jury had overwhelming evidence of his similar prior bad acts. Appellant had been downloading child pornography sporadically for over a year, and perhaps longer, before he was apprehended. He indicated to the agents he would view child pornography in "bursts. Like, it would be a year, and then it would be four or five days, four or five afternoons or evenings, and then it will be gone for six, seven months." He admitted during his interview he had watched child pornography "a couple of times" but he claimed he did not like it. He said he "did it a little bit" that year "and this last year a little bit more," but he did not do it constantly. He stated he had "done it several times, stopped a year or two," but he became "curious again." He told the agents he could not explain why he looked at it. Kotman asked if appellant had been looking at child pornography "more consistently" in the prior three or four months. Appellant responded, "That's probably-probably when you found it." He continued, "You know, it's been at night and then not, and then a couple nights later did it again."
Appellant's admissions to law enforcement that he had been sporadically looking at child pornography for over a year is corroborated by other evidence. Wiens testified at trial that it was on or about January 4, 2011, when he first noticed the IP address that appellant was using. This IP address was sharing suspected child pornography over the peer-to-peer network. Wiens focused on this address based on the number of files it was sharing. At trial, Lawson acknowledged that, in addition to the illegal files which had been saved or created on appellant's hard drive on March 29, 2011, Lawson also forensically found child pornography files on the hard drive that had been saved about a month earlier. Lawson agreed with the prosecutor's assessment that "it would appear" appellant's "MO" was to look at child pornography and then "shortly thereafter" delete it.
The jurors were instructed they could consider appellant's prior bad acts when deciding his guilt. The jurors were told that, if they decided appellant committed the uncharged acts, they could consider that evidence in deciding whether or not appellant knew that the material he downloaded depicted a person under the age of 18 years old personally engaging in or simulating sexual conduct. The jury could also consider his prior acts in deciding whether a mistake or accident had occurred.
The evidence in this record creates an overwhelming inference that in 2010 appellant was intermittently downloading child pornography files. Appellant would shortly thereafter delete those files. Based on appellant's prior bad acts, overwhelming evidence supports the jury's determination that appellant knowingly possessed or controlled child pornography on March 29, 2011, when he again downloaded files that contained child pornography.
3. Appellant used the term "pedo" to search for the pornography.
The evidence from this record strongly suggests that appellant used the term "pedo" to find the pornographic files that he downloaded on March 29, 2011. Appellant made it clear during his interview with the agents that he used the search term "P-E-D-O" to locate pornography on the peer-to-peer program. He stated "pedo" was the only search term he used.
At trial, Lawson agreed that "pedo" is a common search term for people looking for child pornography. Appellant testified at trial that, in 2011, he was "unaware" what the term "pedo" meant. However, he acknowledged telling the agents he had looked up that term in an urban dictionary. Appellant agreed at trial that none of pedo's definitions suggested it would lead to adult pornography.
4. Appellant previewed the files containing child pornography.
This record demonstrates that on March 29, 2011, appellant previewed files that contained child pornography. Appellant told the agents that he had previewed some of the files as they downloaded on March 29, 2011. He made it clear he would look at each file to determine if it was something he was interested in keeping.
At trial, Wiens testified he was able to determine that appellant had previewed at least some of the illegal videos as they were downloaded. However, there was no precise way to know how long appellant may have previewed the videos.
Lawson agreed at trial that many of the files in the Incomplete folder had been previewed, including files depicting child pornography.
At trial, appellant admitted he had previewed some of the files that downloaded on March 29, 2011, but he denied knowing for certain if he had previewed any particular illegal file that had been shown to the jury. He admitted that, prior to March 29, 2011, other child pornography files had been downloaded to his computer, and he had deleted them.
5. Explicit titles were viewable when appellant downloaded the files on March 29, 2011.
The titles on some of the files downloaded on March 29, 2011, contained explicit descriptions that strongly suggested they contained child pornography. For example, some of the video files were titled as follows:
• "Porn (pthc) 9yo vicky stripping and sucking (kiddy pedo illegal underage preteen).mpg."
• "(Pedo gay pthc) 10yo Boy Having Sex With Dad.mpg."
• "G9f 10yo Russian lolita Kim - Daddy cum in pussy (Pthc 20.2.04 pedoland).mpg."
Some of the picture files were titled as follows:
• "12yr old underage child daughter childsex childlover ptsc pthc … pedo cum ass pussy hussyfan mafiasex r@gold sandra lolita preteen model bd(1)."
• "9yo Jenny nude with legs spread wide apart showing pussy - underage lolita r@ygold pthc ptsc ddogprn pedo young child sex preteen hussyfan kiddie, … kiddy, porn (1)."
Wiens opined that the titles for all of the files summarized above would have been visible to appellant when he was downloading them. Although those titles, by themselves, do not establish the possession of child pornography, the explicit titles overwhelmingly suggest their illegal content.
6. Our conclusions.
The trial evidence overwhelmingly demonstrated that appellant had a history of downloading pornography that contained illegal images and videos of underaged children engaged in sex acts. He would delete the illegal files shortly after receiving them. On March 29, 2011, appellant again intentionally sought out and downloaded pornography using a search term, pedo, that had only one reasonable purpose-to locate pornography involving minors. In rendering its verdict, it is clear the jury rejected appellant's claim that he had accidentally downloaded child pornography on the night in question.
The evidence conclusively establishes that appellant downloaded files with the intent to find pornography that either aroused him or interested him. He downloaded 17 files on the night in question that depicted underage children performing sex acts. He previewed some of those files. In doing so, he deliberately displayed images and videos on his computer screen that depicted child pornography. Under these circumstances, it is abundantly clear he knowingly possessed or controlled child pornography in violation of section 311.11. (See Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, 1418 (Tecklenburg).)
We discuss Tecklenburg, supra, 169 Cal.App.4th 1402 in greater detail later in this opinion.
Based on this record, we reject appellant's assertion that Wiens's alleged false and/or misleading testimony was material to the jury's verdict. There is no reasonable likelihood his disputed testimony could have impacted the judgment. We can declare beyond any reasonable doubt that the alleged error did not contribute to the verdict. In other words, Wiens's alleged false and/or misleading testimony was unimportant in relation to everything else the jury considered regarding appellant's guilt. (See Yates v. Evatt, supra, 500 U.S. at p. 403.) The guilty verdict rendered in this trial was surely unattributable to this issue. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Accordingly, appellant's judgment is not tainted. Consequently, appellant's arguments are wholly without merit that his conviction must be reversed based on alleged false and/or misleading testimony.
We likewise disagree with appellant's unsupported argument that structural error occurred in his trial. First, appellant fails to develop this assertion with any meaningful legal analysis supported by citations to authority and citations to facts in the record. Thus, his conclusory claim fails. (See In re S.C. (2006) 138 Cal.App.4th 396, 408.) In any event, structural error did not occur because the "framework" of his trial proceeded appropriately. (See People v. Marshall (1996) 13 Cal.4th 799, 851 [defining and providing examples of structural error].)
II. A Brady Violation Did Not Occur.
As part of a claim of prosecutorial misconduct (which we address in greater detail later in this opinion), appellant asserts that the prosecution willfully suppressed evidence, and he raises an alleged Brady error.
Appellant argues the prosecution failed to provide the following material before the preliminary hearing in this matter: (1) the CPS report, including its "historical information"; (2) the fact that CPS does not log "historical information" for files that are not saved; and (3) Wiens's documentation showing his forensic reviews using EnCase.According to appellant, the withheld items were material at the preliminary hearing. He contends this information confirmed his statements to law enforcement that he had deleted the child pornography. He claims this information would have impeached Wiens at the preliminary hearing, or shown that his testimony was false and/or misleading. He argues that the failure to impeach Wiens permitted him to testify falsely, which eliminated any defense associated with mistake of fact, accident, or momentary or transitory possession.
Appellant notes that Wiens conducted three separate forensic reviews using EnCase. According to appellant, the prosecution never provided the defense with any reports from Wiens's EnCase analysis. At trial, Lawson testified about his forensic review using EnCase, and he provided screen shots from his review.
Appellant notes that, according to the historical information from the CPS report, no child pornography files were logged at appellant's IP address for March 2011, which was the same time frame the magistrate held appellant to answer. Appellant asserts that, without Wiens's false testimony, the magistrate would not have found probable cause at the conclusion of the preliminary hearing. Appellant maintains Wiens falsely testified that none of the illegal files had been deleted, which gave the magistrate the impression that "supportive historical data existed" from CPS. He contends his conviction should be reversed, and this matter remanded with instructions for a new preliminary hearing.
A. Standard of review.
"We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner and Tobin, supra, 50 Cal.4th at p. 176.)
B. Background.
We summarize the relevant procedural history associated with appellant's Brady claim. We also provide additional facts regarding CPS.
1. Wiens's testimony from the preliminary hearing.
The preliminary hearing in this matter occurred in February 2012. During the preliminary hearing, Wiens discussed CPS and he explained how law enforcement uses that application to monitor a peer-to-peer file sharing network for suspected child pornography. During cross-examination, Wiens clarified that CPS monitors the transmission of files without him being present. The program accumulates data and Wiens then looks at the accumulated data. Wiens stated, "We have software tools in place that monitor the entire network for the possession, distribution of child pornography. Those lists are compiled and are available, the historical information is available to us in [real-time] information." Wiens elaborated that CPS does not download files from the specific IP address. Instead, it identifies an IP address, and identifies the files that are being shared from that location. From that shared list, Wiens is able to identify which files an individual possesses that involves child exploitation. The information tells law enforcement that an IP address "is currently sharing child pornography on the [peer-to-peer] network."
Wiens's testimony was prompted by the magistrate, who asked if Wiens had a computer that monitored transmission of files without Wiens being present.
During cross-examination at the preliminary hearing, defense counsel asked Wiens if it was his testimony that the illegal files "were not deleted from the computer?" Wiens responded, "No. They still physically existed on the computer's hard drive." Counsel asked, "Were any files deleted of child pornography?" Wiens responded, "Not that I have knowledge of during my examination of this, of the computer."
2. The magistrate's ruling following the preliminary hearing.
At the conclusion of the preliminary hearing, the magistrate determined it was appropriate to hold appellant to answer to the charges. The magistrate stated it was "clear" that appellant had possessed child pornography. The magistrate focused his attention on the charges in counts 2 and 3. He stated, "The only thing I think about which there's any question is the events-I received no testimony about January, events on January 10th, but I can say that Counts 2 and 3 occurred on or about March 30th and subsequently hold him to answer."
The original criminal complaint alleged that appellant had committed the charged crimes on or about January 4, 2011. In February 2012, and on the day of the preliminary hearing, an amended complaint was filed alleging that count 1 had occurred on or about March 30, 2011, and counts 2 and 3 had occurred on or about January 10, 2011. Following the preliminary hearing, the information charged appellant with possession or control of child pornography (§ 311.11, subd. (a); count 1); exhibiting a minor in pornography (§ 311.1, subd. (a); count 2); and exhibiting a minor in pornography (§ 311.2, subd. (c); count 3). It was alleged that each of these crimes occurred on or about March 30, 2011.
3. The various motions filed below.
In February 2015, the defense filed a discovery motion seeking Brady material. In part, the defense sought "any logs and/or any other records" regarding law enforcement's monitoring of the peer-to-peer network and appellant's activity.
In April 2015, appellant filed a supplemental discovery motion noting that it had still not received the requested logs and records. Appellant's motion noted that, at the preliminary hearing, Wiens had testified about "lists" that CPS compiles when monitoring the peer-to-peer network.
In June 2015, the prosecution filed a response to appellant's discovery motion. The prosecutor alerted the trial court that it did not possess this information. The prosecutor wrote that the prosecution had "inquired" and was told "no such logs exist."
In July 2015, the trial court ordered the prosecution to produce "logs and/or records" showing Wiens's activities in monitoring the peer-to-peer network as to appellant.
In August 2015, the prosecutor informed the trial court orally that no logs or records existed.
In October 2015, the prosecutor continued to claim that all requested materials had been provided to the defense.
In November 2015, the trial court orally cautioned the parties that discovery in this matter would close on December 31, 2015. Any discovery not provided by that time would be "preliminarily excluded" unless good cause was shown.
4. The prosecution provides the CPS report to the defense.
According to appellant, it was not until December 2015 (almost four years after the preliminary hearing) when the prosecution provided the defense with a copy of the CPS report. In January 2016, appellant filed a renewed nonstatutory motion to set aside the information. In his motion, appellant argued that the CPS report showed that no child pornography files had been made available over the peer-to-peer network from appellant's IP address in January, February or March 2011. Appellant asked the court to dismiss the information. Attached to the motion was a declaration from Lawson, who stated he had reviewed a forensic copy of appellant's laptop and he had found "no active (non-deleted) images or videos of child pornography." Lawson, however, admitted he found "movie files" and images of child pornography which appellant had deleted shortly after being downloaded. Lawson opined that none of these files would have been playable or viewable to appellant. Lawson opined that the CPS report did not show that any illegal files had been downloaded in January, February or March 2011 to appellant's IP address.
5. The trial court's ruling on whether to set aside the information.
In January 2016, the trial court heard arguments regarding appellant's motion to set aside the information. The trial court expressed its belief that this involved "a battle of the experts" and a difference of opinion. The court was inclined to deny the motion to set aside the information. However, the court ruled it would deny this motion without prejudice and reconsider it following the experts' trial testimony. The court noted that this was a complex issue and very technical. The court also commented that it did not believe a Brady violation had occurred. The court stated its belief that, even if this material had been provided prior to the preliminary hearing so that the defense could have impeached Wiens, the magistrate still would have held appellant to answer.
6. The prosecution dismisses counts 2 and 3.
The trial in this matter commenced on February 8, 2016. At the beginning of trial and as part of his motions in limine, appellant renewed the motion to set aside the information. The court deferred ruling on this motion until after it had heard the trial evidence.
Under appellant's motion in limine No. 4, he sought to exclude testimony regarding law enforcement's monitoring of the peer-to-peer network with CPS because the prosecution had not provided the defense with a copy of that software. Defense counsel informed the court that the prosecution had provided the "accumulated data" that Wiens had testified about at the preliminary hearing. According to the defense, this data did not list any illegal files appearing at appellant's IP address in January or March 2011, but the charging document had listed January 10 and March 30, 2011, as dates supporting criminal charges. Defense counsel asserted that this represented impeachment and exculpatory evidence.
During oral argument regarding motion in limine No. 4, the court ascertained that the defense had been seeking discovery of the underlying code that comprised CPS. The defense wanted Wiens's testimony excluded at trial because the defense did not know how CPS obtained its results.
At the end of oral argument regarding motion in limine No. 4, the court asked the prosecutor about the charges in this case. The court noted that count 1 applied to "possession or control" and the court believed that charge was not impacted by the issue of how CPS worked. The court noted that count 2 was exhibiting a minor in pornography and count 3 was the same, but these charges had different subsections. The court asked the prosecutor to state her theory for counts 2 and 3. The prosecutor announced she was planning on dismissing counts 2 and 3 and proceeding to trial only on count 1. The court granted the prosecution's request to dismiss counts 2 and 3. The court informed defense counsel that the defense could impeach Wiens at trial that CPS had not logged illegal files appearing at appellant's IP address in January, February or March 2011. The court denied the defense any further discovery on CPS, noting the defense appeared "well prepared to cross-examine the People's expert based on this information."
Count 2 involved a charge of exhibiting a minor in pornography under section 311.1, subdivision (a). Count 3 involved a charge of exhibiting a minor in pornography under section 311.2, subdivision (c).
Appellant contends that, by dismissing these two counts, the prosecution "effectively acknowledged" that Wiens's testimony "was at least misleading." We disagree. Dismissal of these counts neither establishes nor reasonably suggests the prosecution was acknowledging that Wiens's testimony was misleading.
7. Wiens's trial testimony regarding CPS.
At trial, Wiens testified that if a suspect is sharing files in a folder linked to a peer-to-peer network, CPS "will identify all the files that that user is sharing in that one specific folder." CPS is always trying to identify "IP addresses that are actively sharing suspected child pornography."
Wiens clarified that CPS does not log any "historical information" while illegal files are in the process of being downloaded to a particular IP address. For CPS to log a child pornography file at a particular IP address, certain conditions must exist, including: (1) the computer at that location must be on; (2) the peer-to-peer program must be running; (3) the illegal files must be in a folder that is available to the peer-to-peer file sharing network; and (4) those files must be saved in that shared folder. Wiens told the jury that CPS can log an illegal file at a particular address in a matter of seconds if the required conditions are present. However, depending on the conditions, it can sometimes take longer for CPS to log an illegal file.
Wiens testified at trial that CPS does not detect child pornography if a user is "actively downloading" such files. He reiterated that CPS "detects files, pictures, videos that are saved and currently reside in the shared folder and are made available for sharing over the [peer-to-peer] network."
At trial, Wiens explained that, when he did his first examination of appellant's hard drive, he had not searched for deleted files. Wiens agreed with the prosecutor that, when he (Wiens) was asked at the preliminary hearing if he had located any deleted files, he had said no. Wiens also agreed that his answer at the preliminary hearing had been based on the examination he had done prior to the preliminary hearing.
8. Lawson's trial testimony regarding the CPS report.
At trial, Lawson agreed that, based on his review, child pornography files had existed on appellant's hard drive on March 29, 2011, from 11:12 p.m. until 11:39 p.m. The CPS report, however, had not logged any illegal files for that IP address for that night. According to Lawson, this "calls into question either the [CPS] software or the interpretation of it." Lawson agreed it was also "a possibility" that the illegal images did not have hash values that were in law enforcement's "library." However, Lawson admitted that the child pornography images detected on appellant's laptop were fairly common and known.
C. Analysis.
Appellant contends his conviction should be reversed and this matter remanded for a new preliminary hearing because he was not provided with (1) the CPS report, including its "historical information"; (2) the fact that CPS does not log "historical information" for files that are not saved; and (3) Wiens's EnCase report.
Appellant's arguments are without merit. Although the prosecution did fail to provide the CPS report prior to the preliminary hearing, that delay did not result in a Brady violation. We conclude that, even if the disputed materials had been provided to the defense prior to the preliminary hearing, the magistrate's probable cause determination would not have changed regarding count 1. As such, reversal is not warranted for this delay.
1. Brady and its requirements.
In Brady, the high court held that the prosecution's suppression of favorable evidence to an accused upon request violates due process, irrespective of the prosecution's good or bad faith, if the evidence is material to either guilt or punishment. (Brady, supra, 373 U.S. at p. 87.) The defendant has the burden of showing materiality. (In re Sassounian (1995) 9 Cal.4th 535, 545.) There are three components of a true Brady violation: The evidence at issue must be (1) favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence (2) must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
The United States Supreme Court holds that, under Brady, a state must disclose evidence favorable to the defense, which "turns on the cumulative effect of all such evidence suppressed by the government, and we hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor's attention." (Kyles v. Whitley (1995) 514 U.S. 419, 421.) A defendant is entitled to a new trial if the "net effect" of the withheld evidence raises "a reasonable probability" that a different result would have occurred with disclosure. (Id. at pp. 421-422.)" 'A reasonable probability does not mean that the defendant "would more likely than not have received a different verdict with the evidence," only that the likelihood of a different result is great enough to "undermine[] confidence in the outcome of the trial." '" (Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40, quoting Smith v. Cain (2012) 565 U.S. 73, 75.)
2. Brady obligations apply to a preliminary hearing.
The prosecution's Brady obligation extends to the preliminary stage of criminal proceedings. (People v. Gutierrez (2013) 214 Cal.App.4th 343, 348; see also Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 267 [prosecution's failure to disclose evidence material to defense at preliminary hearing entitled defendant to have an element of the charged offense stricken from the information].) However, for preliminary hearings, "the standard of materiality is whether there is a reasonable probability that disclosure of the exculpatory or impeaching evidence would have altered the magistrate's probable cause determination with respect to any charge or allegation." (Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074, 1087.)
"The evidentiary showing required for a preliminary hearing is not substantial." (People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123, 1127.) A court will set aside an information only if there is no evidence a crime was committed or there is no evidence to connect the defendant with the charged crime. (Ibid.)" 'Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.'" (Ibid., quoting People v. Superior Court (Smart) (1986) 179 Cal.App.3d 860, 864.)
3. Reversal is not warranted because prejudice did not occur.
There is no reasonable probability the magistrate's probable cause determination would have changed regarding count 1 had the prosecution provided the disputed information prior to the preliminary hearing. The magistrate learned that law enforcement had focused on appellant after determining an IP address he was using was making child pornography available to others. The magistrate heard about appellant's admissions to the agents that he had knowingly downloaded and viewed child pornography sporadically for over a year. The magistrate was informed that appellant had used the term "pedo" to search for files. The magistrate learned that Wiens had found 17 files on appellant's hard drive that depicted children engaged in sex acts with adults. The magistrate was told that the various titles on the videos contained words and terms suggesting illegal content, and many of the titles referenced the ages of the underage children. When these files were downloaded, the titles were viewable to appellant.
In addition to these videos and images, Wiens also located 13 images which he characterized as "child erotica images." He described those as images depicting apparent underage females who were prepubescent, and who were not engaged in sexual activity but were typically wearing lingerie or underwear.
Appellant argues the results of the preliminary hearing would have been different had the CPS report been provided before the preliminary hearing because counts 2 and 3 were later dismissed. We need not fully respond to that assertion. For purposes of this analysis we will presume (without so deciding) that the magistrate would not have held appellant to answer for counts 2 and 3 if the prosecution had made the CPS report available to the defense prior to the preliminary hearing. Nevertheless, a Brady violation is not present. The CPS report was made available prior to trial. No Brady violation occurs if the previously suppressed evidence is presented at trial. (People v. Verdugo (2010) 50 Cal.4th 263, 281.)
Moreover, no reasonable probability exists that disclosure of the exculpatory or impeaching evidence would have altered the magistrate's probable cause determination with respect to count 1. It is abundantly clear that appellant would have been held to answer for the charge of possessing or controlling child pornography under section 311.11, subdivision (a). The magistrate said it was "clear" that appellant had possessed child pornography.
Finally, appellant contends that Wiens misled the magistrate at the preliminary hearing. According to appellant, the magistrate had asked about the function of CPS, and Wiens gave a "false impression that historical information existed during the relevant time-frame of March and that Wiens had reviewed it[.]" We disagree that Wiens's testimony misled the magistrate. In any event, we need not fully respond to that issue. Instead, the evidence from the preliminary hearing overwhelmingly established that it was appropriate to hold appellant to answer for the charge in count 1.
Based on this record, we will not reverse the judgment and remand this matter for a new preliminary hearing because prejudice did not occur. Even if the disputed materials had been provided sooner, appellant would have been held to answer for the charge in count 1, and the charges in counts 2 and 3 were dismissed before the prosecution presented evidence to the jury. As such, a Brady violation is not present. (See Strickler v. Greene, supra, 527 U.S. at pp. 281-282 ["a true Brady violation" requires prejudice].) Consequently, appellant's arguments are without merit, and his Brady claim fails.
A Brady violation may also occur if a prosecutor knowingly uses perjured testimony, or knowingly fails to disclose that testimony used to convict the defendant was false. (United States v. Bagley, supra, 473 U.S. at p. 678.) We have already held that Wiens did not provide false and/or misleading testimony. We have also already concluded that there is no reasonable likelihood any alleged false testimony impacted the jury's verdict. As such, we likewise reject any assertion that a Brady violation occurred based on Wiens's alleged false and/or misleading testimony.
III. The Trial Court Did Not Err In Declining To Quash The Federal Administrative Summons.
In his supplemental opening brief, appellant asserts that the trial court erred in declining to quash the federal administrative summons which law enforcement used to obtain his physical address. Appellant contends his right to privacy under the Fourth Amendment of the United States Constitution was violated. He seeks reversal of his conviction.
A. Background.
On January 10, 2011, Mark F. Wollman, Special Agent In Charge, issued a DHS summons (the Summons) to appear and/or produce records under 19 U.S.C. section 1509. The Summons was directed to an Internet service provider, which was ordered to produce subscriber information for a particular IP address. The Summons directed the provider to produce this information to Wiens. Based on information it received in response to this Summons, law enforcement learned of the physical address where appellant resided.
19 U.S.C. section 1509 provides, in relevant part, that a summons may issue in "any investigation or inquiry" conducted to insure "compliance with the laws of the United States administered by the United States Customs Service .…" (19 U.S.C. § 1509(a).) Starting around 2003, the United States Customs Service became part of the DHS. (United States v. Reyeros (3d Cir. 2008) 537 F.3d 270, 274, fn. 2.)
At the preliminary hearing in this matter, Wiens testified he had issued the Summons to the Internet service provider after he had discovered suspected child pornography appearing at a certain IP address (which was later linked to appellant). At trial, Wiens testified he used "an admin subpoena" through the DHS after he found the suspected child pornography at the particular IP address.
In September 2015, appellant filed a motion in the trial court seeking to quash the Summons. Appellant argued the Summons was (1) facially invalid and (2) overbroad. Appellant contended the Summons violated various federal statutes. He asked the court to suppress any "fruits, instrumentalities and evidence obtained" as a result of the Summons.
In September 2015, the prosecution filed a written opposition. According to the prosecutor, the Summons was issued by a federal agency pursuant to federal law. Thus, the trial court lacked jurisdiction to quash it.
In September 2015, the trial court ruled on the motion to quash. The court concluded it did not have jurisdiction because the Summons fell under federal law. The court denied the motion on that basis. In any event, the court stated that, if it did have jurisdiction, it would deny the motion on the merits. According to the court, the IP address was from an account which belonged to appellant's father. As a result, appellant had not established "that any of his rights were violated under the issuance of the [Summons]."
B. Analysis.
Appellant acknowledges the Summons was issued by a federal agency under federal law. However, he contends the evidence gathered from it was used in this state action. He maintains the trial court had authority to quash it. He also argues the Summons was issued under the wrong federal law. Appellant is incorrect that the court erred.
1. The Summons was issued under the proper federal statute.
According to appellant, the Summons was facially invalid because it was issued under 19 U.S.C. section 1509. He contends the Summons should have been issued under 18 U.S.C. section 2701 et seq. Appellant's understanding of this law is flawed.
18 U.S.C. section 2701 et seq., is part of the Stored Communications Act (SCA), which governs the privacy of stored electronic communications in the United States. (Alexander v. Verizon Wireless Servs., L.L.C. (5th Cir. 2017) 875 F.3d 243, 249-250.) In general, the SCA (1) prohibits unauthorized access to certain electronic communications (see 18 U.S.C. § 2701); (2) it restricts service providers from voluntarily disclosing the contents of customer communications or records to certain entities and individuals (see 18 U.S.C. § 2702); and (3) it permits government entities to compel a service provider to disclose customer communications or records in certain circumstances (see 18 U.S.C. § 2703). (Alexander v. Verizon Wireless Servs., L.L.C., supra, 875 F.3d at p. 250.)
Federal courts have approved the DHS's use of 19 U.S.C. section 1509 to issue summons to investigate offenses against children. (See United States v. Merrell (D. Minn. 2015) 88 F.Supp.3d 1017, 1033; United States v. Cray (S.D. Ga. 2009) 673 F.Supp.2d 1368, 1376-1377.) Summons like this are appropriate under 19 U.S.C. section 1509 because the DHS now holds the authority that was previously held by the Customs Service. (See 6 U.S.C. § 203(1); United States v. Reyeros, supra, 537 F.3d at p. 274, fn. 2.) The Bureau of Immigration and Customs Enforcement maintains a "Child Exploitation Investigations Unit." (6 U.S.C. § 473(b)(1).) That unit is tasked by statute with investigating child pornography and child exploitation. (6 U.S.C. § 473(b)(2)(A)(i)-(ii).)
Appellant does not cite, and our independent research has not uncovered, a contrary opinion holding that the DHS may not rely on 19 U.S.C. section 1509 to issue a summons to investigate sexual offenses involving children.
Because the DHS is tasked with investigating child exploitation, it is apparent that the Summons issued in this matter furthered "a legitimate investigative purpose in compliance with the statute." (United States v. Cray, supra, 673 F.Supp.2d at p. 1377.) Appellant, therefore, is incorrect that the Summons is facially invalid or that it was issued under the wrong federal statute. To the contrary, the Summons was properly issued under 19 U.S.C. section 1509 on behalf of the DHS to ensure compliance with the laws of the United States. (See 19 U.S.C. § 1509.) Appellant's arguments to the contrary are without merit.
2. Appellant lacked standing to challenge the Summons.
The parties dispute whether or not the trial court had jurisdiction to quash the Summons. According to respondent, the court correctly determined it lacked jurisdiction. In the alternative, respondent argues no Fourth Amendment violation occurred because appellant lacked standing to challenge the Summons.
The search warrant issued in this matter stated that the IP address belonged to appellant's father.
We agree with respondent that appellant lacked standing to challenge the Summons. Thus, we need not resolve the parties' dispute regarding whether or not the trial court had jurisdiction to quash the Summons.
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.) The intent of this Amendment is" 'to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' [Citation.]" (Carpenter v. United States (2018) 585 U.S. ___, ___, [138 S.Ct. 2206, 2213] (Carpenter).)
Federal courts have already held that the Fourth Amendment does not extend a privacy expectation to subscriber information held by an Internet provider. (See United States v. Perrine (10th Cir. 2008) 518 F.3d 1196, 1204-1205 [see cases listed there]; see also Guest v. Leis (6th Cir. 2001) 255 F.3d 325, 336 [holding, in a non-criminal context, that "computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person-the system operator"]; Freedman v. America Online, Inc. (D. Conn. 2005) 412 F.Supp.2d 174, 181 ["In the cases in which the issue has been considered, courts have universally found that, for purposes of the Fourth Amendment, a subscriber does not maintain a reasonable expectation of privacy with respect to his subscriber information."].)
In United States v. Wellbeloved-Stone (4th Cir. 2019) 777 Fed.Appx. 605 (Wellbeloved-Stone), the Fourth Circuit Court of Appeals analyzed whether a defendant could suppress evidence obtained from an administrative summons issued under 19 U.S.C. section 1509. Immigration and Customs Enforcement agents had issued summonses to obtain the defendant's IP address, and Internet and email subscriber information. (Wellbeloved-Stone, supra, 777 Fed.Appx. at p. 607.) The Fourth Circuit Court of Appeals concluded it did not need to address the defendant's argument that the summonses were invalid. Instead, even if they were invalid, the defendant "had no reasonable expectation of privacy in his IP address or subscriber information, and Congress did not provide a statutory suppression remedy for information obtained in violation of [19 U.S.C. section] 1509." (Ibid.) The court also held the defendant "had no reasonable expectation of privacy in his subscriber information, and the Government did not perform a Fourth Amendment search by obtaining that information." (Ibid.)
In the present matter, we conclude that appellant held no reasonable expectation of privacy regarding the subscriber information that was provided in response to the Summons and thus lacked standing to challenge the Summons. (See Wellbeloved-Stone, supra, 777 Fed.Appx. at p. 607.) Moreover, Congress has not provided a statutory suppression remedy for information allegedly obtained in violation of 19 U.S.C. section 1509. (Wellbeloved-Stone, supra, at p. 607.) Accordingly, appellant's claim fails under clear federal case law. The trial court did not err when it denied appellant's motion to quash.
Although the decision from Wellbeloved-Stone is not binding on this court, its decision is persuasive because it is interpreting federal law. (See People v. Zapien (1993) 4 Cal.4th 929, 989.) We find Wellbeloved-Stone well-reasoned and we will follow its guidance here.
Finally, appellant asserts that Carpenter, supra, 585 U.S. ___, ___ establishes that the trial court should have quashed the Summons. We disagree.
In Carpenter, the government obtained location information from the defendant's two cell phone providers. (Carpenter, supra, 585 U.S. ___, ___ .) The government did not apply for or receive a warrant for the information. (Ibid.) The Supreme Court of the United States acknowledged the changing technological advances, particularly with respect to a cell phone's ability to store vast amounts of extremely sensitive information that is "detailed, encyclopedic, and effortlessly compiled." (Carpenter, supra, 585 U.S. ___, ___ [138 S.Ct. at pp. 2214, 2216].) The Supreme Court distinguished Carpenter from previous third-party doctrine cases due to the "unique nature of cell phone location records." (Carpenter, supra, 585 U.S. ___, ___ .) Such records reveal a person's particular movements, but also familial, political, professional, religious and sexual associations. (Ibid.) The Supreme Court ruled, however, that its decision was "a narrow one." (Carpenter, supra, 585 U.S. ___, ___ .) The high court stated it did not intend "to call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information." (Ibid.)
The Fourth Circuit Court of Appeals in Wellbeloved-Stone has already rejected the same argument that appellant advances here. As noted by the Fourth Circuit Court of Appeals, the Carpenter court explicitly emphasized the narrow scope of its holding. (Wellbeloved-Stone, supra, 777 Fed.Appx. at p. 607, citing Carpenter, supra, 585 U.S. ___, ___ .) The Wellbeloved-Stone court declined to extend Carpenter to the issue of IP addresses and subscriber information. (Wellbeloved-Stone, supra, 777 Fed.Appx. at p. 607.) It noted that no post-Carpenter authority was cited to it which extended Carpenter's rationale to IP addresses or subscriber information. (Wellbeloved-Stone, supra, at p. 607.)
In the present matter, appellant likewise cites no post-Carpenter authority extending Carpenter's rationale to IP addresses or subscriber information. Carpenter is factually distinguishable because the Internet subscriber information at issue in this matter differs drastically from the cell phone location information obtained in Carpenter. Carpenter is inapplicable and it does not establish error here.
Based on this record, the Summons was facially valid and properly executed under 19 U.S.C. section 1509. Further, appellant held no reasonable expectation of privacy in the subscriber information that was provided in response to the Summons. Finally, the Government did not perform a Fourth Amendment search by obtaining this information through the Summons. (See Wellbeloved-Stone, supra, 777 Fed.Appx. at p. 607.) Consequently, the trial court did not err in denying appellant's motion to quash, and this claim fails.
IV. The Lower Court Did Not Err In Denying Appellant's Motions To Suppress His Statements To Law Enforcement.
Appellant argues the lower court erred in denying multiple motions he filed seeking to suppress his statements to law enforcement. According to appellant, his judgment should be reversed and this matter remanded for a new trial with directions that all of his statements must be suppressed.
A. Factual background.
Appellant's arguments regarding suppression are based on how law enforcement executed the search warrants, and how he was interviewed. We summarize those facts from both the preliminary hearing and trial.
1. The execution of the search warrants.
Law enforcement executed search warrants in this matter on March 30, 2011. Kotman, a special agent with Homeland Security Investigations, testified at both the preliminary hearing and trial regarding how the search warrants were executed.
According to Kotman, agents had learned that appellant was "an avid shooter," and because appellant resided far away from hospitals, agents decided to try to execute the search warrants when he was away from home. Agents waited until appellant left his residence and they followed him. They did not want him to return to his residence because they did not know how cooperative he would be, and because agents believed he had weapons at the house.
As agents followed him, appellant began driving at a high rate of speed, upwards of 70 miles per hour. Appellant also drove through a stop sign without stopping. The agents directed a marked patrol vehicle to initiate a traffic stop. However, it was difficult to get the patrol vehicle behind appellant because of appellant's speed of travel.
At trial, appellant testified that he had been speeding that morning because he was late to school.
A sheriff's deputy initiated a traffic stop in a turnout. Shortly after he was stopped, appellant exited his vehicle, which prompted the deputy to draw his service weapon. The deputy handcuffed appellant. Kotman arrived on the scene and appellant was passed to Kotman, who conducted a patdown search. The handcuffs were removed after two or three minutes. Five law enforcement personnel were present when appellant was stopped.
Law enforcement did not have an arrest warrant when they stopped and detained appellant.
Appellant was told about the search warrants. Kotman gave him a copy and told appellant that agents had to take his vehicle and the items in it. Appellant was advised that his vehicle would be taken to a nearby sheriff's substation to be searched. Appellant was told he did not have to accompany law enforcement, but he could do so and then recover his property once the search was completed. Appellant agreed to ride with Kotman to the substation.
Kotman testified that law enforcement needed power outlets to conduct their search, which they did not have "at that location alongside of the road." Kotman explained that the area was "pretty narrow, and just safety-wise we couldn't search the vehicle there, but more importantly, we need power outlets to do a search."
During later cross-examination, Kotman explained it was his understanding the forensic search of appellant's laptop required a power outlet, but he admitted that a power source was not specifically needed to search appellant's vehicle.
Appellant rode with Kotman to the substation in the front seat of Kotman's unmarked truck. Appellant was not handcuffed as he rode to the substation. The ride lasted a "couple minutes." During the ride, Kotman informed appellant that he was not under arrest. At the substation, they went into a small conference room. Kotman and Kuzma interviewed appellant in the conference room. The audio from that interview (People's exhibit 1A) was recorded and played for the jury.
Around the time appellant was being interviewed, other agents were searching his vehicle and they seized his laptop.
2. Additional facts about appellant's interview.
At the very start of the recorded interview, appellant expressed disbelief that so many agents were present at the substation for his matter. He was informed that this was a "multi-agency task force" and appellant's family had a large piece of real property which was being searched that day. Appellant was told that he would be able to call his family later.
At trial, Kotman testified that about 15-20 officers were present at the substation when he arrived with appellant.
Very shortly after the interview started, Kotman advised appellant of his Miranda rights. Appellant was told he had the right to remain silent and anything he said could be used against him in court or in other proceedings. He had the right to consult an attorney before making any statements or asking any questions. He had the right to have an attorney present with him during questioning. If he could not afford an attorney, one would be appointed for him before any questions if he wished. Kotman told appellant, "If you decide to answer questions now, you still have the right to stop the questioning at any time or to stop the questioning for the purpose of consulting an attorney."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Kotman asked appellant if he had any questions about these rights. Appellant said, "No." Kotman asked if appellant was willing to waive those rights, appellant asked what "waive" meant, and Kotman explained it meant appellant understood his rights "and you agree to them[.]" Kotman reminded appellant that he did not have to talk to the agents. Kuzma told appellant that he was not in custody and not under arrest. Kuzma said it was a "precautionary measure" to read the Miranda rights. Kuzma reiterated if appellant wanted to stop "that's fine. Just let us know, okay? Hopefully, during this conversation we can kind of figure out what's going to happen at the house, too." A written waiver of rights was presented to appellant, who signed it.
Kotman explained that he and Kuzma were investigating computer crimes and they were going to ask about appellant's computer usage. Kotman said he understood that about 30 computers were located at his family's residence, and he asked if they were all business related. Appellant responded, "Give or take four or five." Kotman asked a series of questions regarding how appellant used his computers. Kotman then asked if appellant had an idea where this conversation was going, and Kotman said law enforcement had computers "that are constantly looking for child pornography," and appellant's house had "popped up[.]" Kotman said "we know it's there. We're just trying to get your side of the story. And, you know, also too, if you could help us kind of narrow down which computers to do, that will, you know, probably be better for your parents' business, and stuff like that."
Appellant asked what would happen if files were found, and Kotman said that was up to the Office of the United States Attorney. Kotman stated the attorneys "would decide depending on basically how much there is and, you know, your side of the story." Kotman told appellant that, based on appellant's reaction, it seemed like law enforcement was "probably going to find some stuff" on a computer. Appellant said he did not want to say yes at that time.
Kotman asked if appellant would say whether or not agents should search all of his parents' computers. Kotman indicated that, if agents had to search 30 computers, that would take a lot of time. Kuzma then said that the agents wanted to be "as less intrusive as possible. So if we can narrow the scope down a little bit, that would help." Kotman then added, "I guess what we're saying is there's a certain level of-it's inevitable that we're eventually going to-if there is anything, we're going to find it. And it would, you know, probably be easier on your family and-I mean, to be honest, it's going to be easier for us, too, to-if we-if we have a .…"
Appellant immediately asked what would happen to him if something was found on his laptop. He was told it depended on a lot of factors, such as the number of files. Appellant asked what would happen if law enforcement found "20 or 30" files. Kotman responded, "20-well, again, we can't promise anything, but if you say-"
Appellant immediately asked if he would go to jail for 10 years. Kuzma responded that they had "seen everything from one file to 10, 000 files. Like [Kotman] said, it's not up to us. We have to look at the big picture here." Kuzma explained that they would look at a lot of factors, like whether a person had categorized the files or appeared to be a collector, whether the person did this from curiosity, and whether the person was distributing the materials worldwide.
Kotman told appellant, "I can't promise you either way, but if-I guess, typically, what happens is depending on the file count, we make a decision to arrest or not." Kotman explained the decision to arrest usually involved whether or not a person had regular access to children. "But I guess we could give you a better idea if we had an idea. And if-I mean, I guess, ultimately we can wait here if you want to do that, or .…"
Kuzma told appellant that this was his chance to explain what happened. Kuzma stated that agents were "searching the computers right now. The ones in your car, they're probably looking at them right now." Appellant responded that his laptop was in his vehicle. He said, "I would like to know what they find" on it.
Kuzma stated, "Well, I mean, it's your computer. I think you have kind of a good idea what-what's going to be on there. You know, you might not know an exact amount."
Kotman explained that he knew appellant had used a network, and he knew appellant's computer "was making about 70 images available and five videos. So that's what I anticipate finding."
Appellant wanted to know how "bad" it would be if that was located on his laptop. Kuzma told him that he was not "setting any records" with that amount. Appellant then admitted that agents were "probably going to find some on the computer." He said he could save the agents the trouble of going to his parents' house because they had his laptop, which was the computer they were going to want to search. He said he "made it easy" for the agents.
Following this admission, appellant provided greater details about his Internet usage and how he found the child pornography. He admitted he knew that his behavior was "morally" wrong. He had used the search term "P-E-D-O" to locate files on the peer-to-peer program. He stated he would view child pornography in "bursts. Like, it would be a year, and then it would be four or five days, four or five afternoons or evenings, and then it will be gone for six, seven months." He admitted during his interview he had watched child pornography "a couple of times" but he claimed he did not like it. He said he "did it a little bit" that year "and this last year a little bit more," but he did not do it constantly. He stated he had "done it several times, stopped a year or two," but he became "curious again." He told the agents he could not explain why he looked at it.
At the end of the interview, law enforcement returned appellant's cell phone to him. He was told he could use it again to contact people, but appellant was told he could not call his house, which could "disturb" what was happening there.
3. Appellant's evidence regarding the traffic stop.
A defense investigator drove the same route that appellant drove on the day he was stopped. According to the investigator, three turnouts existed between appellant's residence and the sheriff's substation. These turnouts were big enough that law enforcement could have searched appellant's vehicle without taking it to the substation.
The investigator found the approximate location where law enforcement stopped appellant's vehicle. The investigator described the area as "not well-traveled." There were not a lot of homes in the area, and it was in the foothills.
Appellant's parents each testified at the preliminary hearing. They both recalled that a search warrant was executed on their property on March 30, 2011. At some point that day, appellant's mother asked an officer if she could speak with appellant. She was told he was "being held at the sheriff's substation in Squaw Valley." According to the mother, law enforcement would not let her leave and they told her that appellant was not able to speak with her. She tried to telephone appellant, and she was told that she could not.
Appellant's father also tried to see appellant that day. According to the father, Wiens said they could not see appellant because he was "being held." Wiens also prevented the father from trying to telephone appellant. According to the father, Wiens said that appellant was "being held for questioning."
B. Procedural background regarding appellant's motions to suppress.
Appellant filed multiple motions in the lower court seeking to suppress evidence in this matter, including his statements to law enforcement. We briefly summarize the various motions.
1. The motion filed in February 2012.
In February 2012 prior to the preliminary hearing in this matter, appellant filed a motion in the lower court pursuant to section 1538.5 seeking to suppress his statements made to law enforcement. At the beginning of the preliminary hearing, defense counsel clarified that the motion was brought under the Fourth Amendment of the United States Constitution. Defense counsel specifically stated that the motion did not involve issues under Miranda. At the conclusion of the preliminary hearing, the magistrate denied the motion to suppress, ruling that appellant's statements to law enforcement had been voluntary.
This motion was filed by appellant's prior counsel of record, who represented appellant at the preliminary hearing.
2. The renewed motion filed in June 2012.
In June 2012, appellant filed a renewed motion to suppress. In general, the motion asserted that law enforcement had unreasonably detained appellant, exhibited excessive force, and pressured him during the subsequent interview. Miranda was not cited in the motion. In fact, appellant asserted that his motion was not based on his Fifth Amendment rights under the United States Constitution.
This motion was filed by appellant's current counsel of record, who represented him both at the trial and in this appeal.
In August 2012, the lower court denied the motion. The court noted that, in ruling on this motion, it was not considering Miranda or appellant's waiver of those rights for purposes of the motion. The court concluded that appellant's free will had not been overcome.
3. The "common law" motion filed in December 2012.
In December 2012, appellant filed a "common law motion" to exclude his statements. In part, appellant raised Miranda, arguing his waiver was improper. According to appellant, the agents failed to inform him properly of the meaning of "waiver" in violation of Miranda. Appellant asserted he was not provided clarification regarding the consequences of waiving his Miranda rights. He also argued that no determination was made regarding whether he had the requisite level of comprehension regarding his rights. Appellant maintained that, under the totality of the circumstances, his due process rights were violated and his statements must be excluded.
In January 2013, the lower court denied appellant's request to hear this motion. Although the record is not clear, it appears the prosecution orally objected to this motion, claiming the court had discretion whether or not to entertain it. After the court declined to hear this motion, no written opposition or further briefing on this issue was filed in the lower court.
4. The renewed motion filed in April 2013.
In April 2013, appellant filed a renewed motion to suppress based on a new opinion from the United States Supreme Court, Bailey v. United States (2013) 568 U.S. 186 (Bailey). Appellant did not raise Miranda as an issue in the motion for the lower court to consider. In May 2013, the lower court denied the motion, concluding that Bailey was inapplicable.
The issue in Bailey was whether the seizure of a person is reasonable "when he was stopped and detained at some distance away from the premises to be searched when the only justification for the detention was to ensure the safety and efficacy of the search." (Bailey, supra, 568 U.S. at pp. 189-190.)
5. The renewed motion filed in September 2014.
In September 2014, appellant filed a renewed motion to suppress. The motion asserted that suppression was warranted based on "inaccurate and/or misleading statements" from Wiens. In November 2014, appellant filed an amendment to that motion. That same month the lower court denied the motion, concluding grounds did not exist to reconsider the arguments.
6. The motion in limine filed in February 2016.
In February 2016, appellant filed a motion in limine (number two in his series) in which he renewed his motion to suppress his statements to law enforcement. Appellant did not raise Miranda as an issue for the trial court to consider. The court denied the motion because no new evidence supported it.
7. The oral objections at trial.
During the trial, appellant's counsel orally renewed objections to the admission of appellant's statements to law enforcement. Miranda was not raised as a possible ground to exclude this evidence. The trial court stated that the previous rulings remained in effect.
C. Standard of review.
In the absence of Miranda warnings, statements made by a custodial defendant are inadmissible in the prosecution's case-in-chief. (People v. Gurule (2002) 28 Cal.4th 557, 601.) On appellate review, we independently determine whether a challenged statement was obtained in violation of Miranda. (Gurule, at p. 601.)
"When a defendant challenges the admission of a statement on the grounds that it was involuntarily made, the state bears the burden of showing by a preponderance of the evidence that a defendant's statement was, in fact, voluntary. [Citation.] On appeal, we accept the trial court's factual findings as to the circumstances surrounding the confession, provided they are supported by substantial evidence, but we review de novo the ultimate legal question of voluntariness. [Citation.]" (People v. Battle (2021) 11 Cal.5th 749, 790.)
D. Analysis.
Appellant asserts that this claim involves two issues: (1) did a Miranda violation occur at his initial traffic stop; and (2) were his statements to law enforcement voluntary. According to appellant, he was in custody the moment he left his vehicle and the first deputy approached him with a service weapon drawn. Appellant asserts that law enforcement used "shock and awe" tactics and took possession of his vehicle in a location that compelled him to ride to the substation or face being stranded in a desolate location without transportation or a cellular phone. Appellant contends law enforcement was required to give him Miranda warnings well before he reached the substation. He maintains his statements to law enforcement were not voluntary, and the lower court should have granted his various motions to suppress. Appellant relies primarily on People v. Saldana (2018) 19 Cal.App.5th 432 (Saldana) and People v. Torres (2018) 25 Cal.App.5th 162 (Torres) to establish error.
In contrast, respondent asks us to strike this claim because appellant failed to comply with the California Rules of Court. Respondent also contends that appellant has forfeited his Miranda claims because he did not raise them below. In the alternative, respondent asserts that, even if appellant was in custody at some point, he was properly notified of his Miranda rights, and he knowingly and intelligently waived them prior to making any incriminating statements. Respondent also argues that coercion did not occur, and appellant's statements were voluntary.
Although we deny respondent's request to strike this claim, we agree with respondent that appellant has forfeited his Miranda claim. We also hold that appellant has waived any issue and/or argument he failed to raise in his opening and supplemental opening briefs regarding this claim. We agree with respondent that appellant's statements were voluntary and uncoerced. We hold that the lower court did not err in denying the various motions to suppress.
1. We deny respondent's request to strike this claim.
Respondent argues that appellant's opening brief is not in compliance with the California Rules of Court. According to respondent, although appellant's opening brief contains some references to the record, those references are deficient and sometimes inaccurate. Respondent asserts that this claim should be stricken.
On April 12, 2019, respondent filed a motion asking this court to strike appellant's opening and supplemental opening briefs for failure to comply with certain rules of the California Rules of Court. On April 15, 2019, this court denied that motion, ruling that nothing precluded either respondent or this court "from addressing and resolving the issues utilizing procedural bars based on any deficiencies in appellant's briefing."
In his reply brief, appellant concedes that his counsel made certain citation mistakes when referencing the record. Appellant, however, contends that, even if certain citations to the record were missing, he correctly represented the contents of the record. Appellant also argues that respondent was not harmed because respondent was able to understand and address the issues, and respondent provided the missing citations to the record. Finally, appellant contends he is permitted to" 'join in or adopt by reference'" respondent's citations to the record, thus curing any harm.
The California Rules of Court do permit a party to "join in or adopt by reference all or part of a brief in the same or a related appeal." (Cal. Rules of Court, rule 8.200(a)(5).) However, we reject appellant's suggestion that, in general, a defendant may provide a deficient opening brief and simply join all or part of the respondent's brief to alleviate the original briefing deficiencies. We caution appellant's counsel to not rely on this rule in this manner.
In general, we agree with respondent that appellant's opening brief fails at times to comply with the California Rules of Court. An appellate brief must support each point by argument and, if possible, by citation of authority. Each brief must also support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) If a deficient appellate brief is filed, the reviewing court may, on its own or a party's motion, with or without notice, order the brief returned for corrections and refiling within a specified time; strike the brief with leave to file a new brief within a specified time; or disregard the noncompliance. (Cal. Rules of Court, rule 8.204(e)(2)(A)-(C).)
In this matter, some of appellant's assertions lack clear citations to the record and, as his counsel admitted, certain citations were incorrect. In that regard, the opening brief is deficient. We will consider as waived any conclusory point which appellant asserted without argument and authority. (In re S.C., supra, 138 Cal.App.4th at p. 408.) Nevertheless, we deny respondent's request to strike the entire claim. It is apparent respondent was able to provide a meaningful response to the assertions which appellant raised. Therefore, we will proceed to the merits of this claim. (See Cal. Rules of Court, rule 8.204(e)(2)(C) [an appellate court may disregard any briefing noncompliance].) In any event, we conclude appellant has forfeited his Miranda argument, and his statements to the agents were neither coerced nor involuntary.
2. Appellant is deemed to have waived any issue and/or argument that he failed to raise in his opening and supplemental opening briefs in support of this claim.
In raising this claim in his opening brief, appellant seems to suggest this court must review all of his filings below to find potential arguments in his favor. Appellant states he "incorporates by reference all the facts and legal arguments contained in the trial court filings." He later asserts that his statements should be suppressed, in part, "based upon the legal authority he raised in the trial court."
We reject appellant's suggestion that this court must scour the record to find reasons why the lower court may have improperly denied his various motions to suppress. Instead, appellant was obligated in his opening brief to state the facts upon which this claim rests and to provide a citation to the record wherein those facts may be found. (Cal. Rules of Court, rule 8.883(a)(1)(B).) He was also required to provide" 'legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9.)
We will only address those specific arguments which appellant raised in his opening brief and supplemental opening brief in support of this claim. We hereby deem that appellant has waived any other issues and/or arguments he failed to assert.
3. Appellant has forfeited his Miranda claim.
We agree with respondent that appellant has forfeited his Miranda claim because the lower court never ruled on Miranda. Although appellant attempted to raise in his December 2012 "common law" motion the issue of whether his Miranda waiver was proper, the court declined to hear those arguments. Appellant does not challenge the court's ruling declining to entertain that motion.
Moreover, the Miranda issue which appellant raises in this appeal, whether a Miranda violation occurred at his initial traffic stop, was never raised below. We will not entertain this issue for the first time on appeal. A party cannot argue the lower court erred in failing to conduct an analysis it was never asked to perform. (People v. Tully (2012) 54 Cal.4th 952, 980.) Based on a failure to raise his Miranda issue below, appellant is precluded from now advancing it on appeal. (See People v. Scott (2011) 52 Cal.4th 452, 482 [failure to raise purported invocation of Miranda rights forfeited by failure to assert claim in trial court]; People v. Combs (2004) 34 Cal.4th 821, 845 [claim of invalid waiver of Miranda rights forfeited by failure to raise it in trial court]; People v. Holt (1997) 15 Cal.4th 619, 667 [failure to raise Miranda claim in motion to suppress for alleged due process violation].)
4. Neither Saldana nor Torres have preserved appellant's Miranda claim.
Appellant suggests that his Miranda claim should be deemed preserved for appellate review because, after he filed this appeal, Saldana and Torres were published. According to appellant, he benefits from both Saldana and Torres, which should retroactively apply to him.
In his reply brief, appellant asserts that, based on Saldana and Torres, either law enforcement should have given him a Miranda warning at the time of the initial traffic stop, "or they did not have to based upon the circumstances in this case. If not, the Miranda issue is moot; but not the involuntary statement issue." Appellant concedes that his Miranda claim is not very strong.
We reject appellant's contention that Saldana or Torres have preserved his Miranda claim.
a. Saldana.
In Saldana, the defendant was a 58-year-old legal Mexican immigrant with a sixth-grade education. With no notable criminal history, he was charged with committing lewd acts on three girls, who were 11, eight and six years old, respectively. The children lived in the trailer park where the defendant resided. (Saldana, supra, 19 Cal.App.5th at p. 436.) According to the appellate court, "the veracity of the children's claims was open to question. Left mostly unsupervised, the eight year old and the 11 year old watched a daily television soap opera which frequently depicts adult themes. After watching, the girls acted out episodes themselves. The day before accusing [the defendant] of molesting them, they watched an episode involving child molestation." (Ibid.)
In response to a police request, the defendant voluntarily went to a police station for questioning. He was not handcuffed and when questioning started he was told "he could leave when he wanted and would not be arrested-'right now.'" However, once the door was closed, a police interrogation commenced that "was persistent, confrontational, and accusatory." (Saldana, supra, 19 Cal.App.5th at pp. 436-437.) Miranda warnings were never given to the defendant. (Id. at p. 441.) At the end of the interrogation, the defendant confessed to inadvertently touching two of the girls on the vagina, outside their clothes. (Id. at p. 436.)
The Saldana court reviewed in detail the totality of the circumstances surrounding the interrogation. (Saldana, supra, 19 Cal.App.5th at pp. 454-461.) The appellate court held that, well before the defendant confessed, "a reasonable person in his circumstances would not have felt free to leave. Thus, [the defendant] was in custody during the interrogation and his confession was inadmissible." (Id. at p. 461.) The Saldana court ruled that this error was prejudicial because the confession was instrumental in finding appellant guilty. (Id. at pp. 463-464.) The defendant's judgment was reversed. (Id. at p. 464.)
b. Torres.
In Torres, the defendant voluntarily agreed to be interviewed regarding an accusation of sexual abuse. The interview took place in an unmarked police car in front of the defendant's residence. Before the interview, he was advised he was not under arrest and was free to leave. (Torres, supra, 25 Cal.App.5th at p. 167.) During the interview, the defendant eventually made incriminating statements that were introduced against him at trial. (Id. at p. 170.) The Torres court concluded that, based on the totality of the circumstances, law enforcement should have provided the defendant with Miranda warnings prior to the questioning because the interview turned into a custodial interrogation. The interview was short (lasting about 45 minutes) and a conversational tone was used. Appellant was arrested two weeks after the interview ended. (Torres, supra, at pp. 173-174.) Nevertheless, the interview occurred because the defendant was viewed as a suspect. The defendant was interviewed in a location controlled by the detectives, and the detectives dominated and controlled the interrogation. Interrogation techniques were used to pressure the defendant, including (1) telling him about false evidence, (2) asking confrontational and accusatory leading questions, (3) giving him choices and encouraging him to pick one of those choices, (4) minimizing the accusations against him, and (5) expressing a belief that the defendant was culpable and they had evidence to prove it. (Id. at p. 176.) The Torres court explained that the detectives went further than the detective in Saldana, essentially telling the defendant they would not leave, and he could not return home until he stopped lying and confessed to what the detectives could prove scientifically. (Torres, at p. 179.) The Torres court found that prejudice had occurred because the defendant's statements to police were crucial to the prosecution. (Id. at p. 182.) The court reversed the judgment. (Id. at p. 183.)
Here, appellant concedes he never raised his Miranda issue in the lower court prior to the issuance of Saldana, supra, 19 Cal.App.5th 432 (and, by implication, prior to the issuance of Torres, which also was published in 2018). Nevertheless, appellant maintains that Saldana and Torres should retroactively apply to him. We disagree. There is nothing from Saldana and Torres that retroactively applies to appellant's case.
In general, judicial decisions that announce a new rule for criminal prosecutions must be applied retroactively to all cases pending on appeal or not yet final. (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507; People v. Song (2004) 124 Cal.App.4th 973, 982.) In this matter, however, neither Saldana nor Torres issued a new criminal rule of law. Instead, those opinions merely reiterated long-standing principles regarding how to determine if a custodial interrogation had occurred. Thus, neither Saldana nor Torres are applicable here.
We reiterate that appellant has forfeited his Miranda claim. At no time did he raise his Miranda issue below. Thus, he may not rely on either Saldana or Torres because he failed to preserve this issue for appellate review. (See People v. Scott, supra, 52 Cal.4th at p. 482 [failure to raise purported invocation of Miranda rights forfeited by failure to assert claim in trial court]; People v. Combs, supra, 34 Cal.4th at p. 845 [claim of invalid waiver of Miranda rights forfeited by failure to raise it in trial court]; People v. Holt, supra, 15 Cal.4th at p. 667 [failure to raise Miranda claim in motion to suppress for alleged due process violation].)
5. Appellant's statements were voluntary and not the result of police coercion.
Appellant argues that his statements to law enforcement were the product of coercion and they were involuntary. He contends that law enforcement used "shock and awe" from the moment he was pulled over until his interview occurred at the substation. He notes that multiple law enforcement personnel were present during his traffic stop, and at least one deputy pointed a firearm at him. He was handcuffed for two to three minutes. He asserts he was forced to accompany law enforcement to the substation because they seized his vehicle in a desolate location and left him stranded without a cellular phone. He maintains that law enforcement selected a "dangerous location" to initiate the traffic stop, which could have been done closer to his home or at a safer location. He insists that law enforcement acted unreasonably in how it executed the search warrant.
Appellant further notes that over 15 officers were at the substation, and he was told that all of them were there for his matter. He argues that law enforcement threatened him during his interview. According to appellant, law enforcement made it clear that they would shut down his family's business by taking its computers if he did not cooperate. Likewise, he contends that law enforcement made him promises of leniency if he was cooperative.
We disagree with appellant's numerous arguments. Under the totality of the circumstances, appellant's statements were voluntary and not the result of coercion.
A criminal defendant has both substantive and procedural due process rights, which means that a confession may be admitted at trial "only if it is subjected to screening in accordance with correct constitutional standards." (Rogers v. Richmond (1961) 365 U.S. 534, 544-545.) "Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial." (People v. Linton (2013) 56 Cal.4th 1146, 1176.)
" 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made.' [Citation.] 'Whether a confession was voluntary depends upon the totality of the circumstances.' [Citations.] 'On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence.' [Citation.] The facts surrounding an admission or confession are undisputed to the extent the interview is tape-recorded, making the issue subject to our independent review. [Citation.]" (People v. Linton, supra, 56 Cal.4th at pp. 1176-1177.)
The issue is whether police brought influences upon the accused so that his or her will to resist was overcome. (People v. Thompson (1990) 50 Cal.3d 134, 166.) We must examine both the defendant's characteristics and the details of the interrogation. (Ibid.) Both the United States Supreme Court and our high court have listed relevant factors to examine. Those factors include: (1) the defendant's age or maturity; (2) the defendant's level of education; (3) the defendant's level of intelligence; (4) the lack of any advice given to the defendant regarding his constitutional rights; (5) the length of the detention; (6) whether the questioning was repeated and prolonged; (7) whether physical punishment occurred, such as the deprivation of food or sleep; (8) whether any threats were used; (9) whether any direct or implied promises were made; and (10) whether police used deceptive tactics. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; People v. Linton, supra, 56 Cal.4th at p. 1176; People v. Dykes (2009) 46 Cal.4th 731, 752.) "In evaluating the voluntariness of a statement, no single factor is dispositive. [Citation.]" (People v. Williams (2010) 49 Cal.4th 405, 436.)
Here, the record belies appellant's assertions that law enforcement created an impermissibly coercive environment. The agents decided to execute the search warrants when appellant was away from his residence because they did not know how cooperative he would be, and because they believed weapons were located at his residence. Appellant was speeding on a "mountain road" when law enforcement initiated the traffic stop. Once he pulled over, appellant got out of his vehicle.
We disagree with appellant's characterization that law enforcement used "shock and awe" in handling this traffic stop. Because appellant was speeding-which appeared to be a possible attempt to elude law enforcement-and because appellant exited his vehicle when he was pulled over, the deputy was justified in briefly drawing his weapon for protection. Appellant was briefly handcuffed and searched for weapons. Under the circumstances, appellant's brief detention was justified for officer safety. (See Terry v. Ohio (1968) 392 U.S. 1, 27 [officers may undertake a properly limited search for weapons if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger"].) Law enforcement did not act in an unreasonable manner during this traffic stop. We reject appellant's position that law enforcement's conduct during this traffic stop created a coercive environment or caused appellant's later statements to be involuntary.
After his vehicle was seized, appellant accompanied Kotman to the substation. The parties dispute whether or not appellant was forced to go to the substation. According to appellant, he had no real alternative to avoid being stranded in a desolate location. In contrast, respondent maintains that appellant voluntarily chose to go to the substation.
We need not fully respond to whether or not appellant was impliedly forced to accompany law enforcement back to the substation. Instead, even if we presume that appellant's only reasonable option was to accept a ride with law enforcement, that fact- along with the remaining totality of the circumstances-does not demonstrate an impermissibly coercive environment or that appellant's statements were involuntary.
Appellant was told he did not have to accompany Kotman, but he could do so and then recover his property once the search was completed. During the drive to the substation, Kotman informed appellant that he was not under arrest.
At the very start of the recorded interview, appellant expressed disbelief that so many agents were present at the substation for his matter. He was immediately informed that this was a "multi-agency task force" and appellant's family had a large piece of real property which was being searched that day. Appellant was provided with Miranda warnings.
Appellant was again told he was not under arrest. He was informed he could end the interview if he so desired. The interview occurred in a conference room. Although the door was closed, it was not locked and people were coming and going.
The relevant factors do not demonstrate that appellant's will was overborne. Appellant was approximately 21 years old when this interview occurred, and he was attending university classes. Although he still lived with his parents, nothing suggests he lacked maturity. Both his level of education and his responses to the agents during this interview speak to his intelligence. It is apparent that appellant was able to understand and contemplate the nature and circumstances of this interview. Indeed, appellant did not immediately admit possessing child pornography, and he asked questions to the agents in an effort to find out how much trouble he might be facing if he did make admissions. This strongly suggests that appellant was in control of what information he wanted to provide. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58 [a defendant's calculation on what information to provide does not demonstrate a will overborne by official coercion].)
The record demonstrates that the agents were polite with appellant. At no time did the agents deceive him or embellish the state of the evidence. Instead, the agents honestly told appellant what their investigation had revealed and what they expected to find on at least one computer associated with the IP address he was using. The agents honestly informed him that his laptop had been seized from his vehicle, and the laptop was being searched while they talked.
The interview was not unduly long (the transcript covers about 77 pages) and appellant never asked for it to stop. No physical punishment occurred, and appellant was not deprived of food or sleep. The agents did not subject him to either repeated or prolonged questioning. Instead, once appellant admitted that child pornography files were on his laptop, the conversation shifted into the history of his searches and his motivation. The nature of the questioning and the length of this interview do not establish that appellant's will was overborne. (See Schneckloth v. Bustamonte, supra, 412 U.S. at p. 226; People v. Dykes, supra, 46 Cal.4th at p. 752.)
We reject appellant's assertion that the agents threatened appellant regarding his parents and their family business. To the contrary, the agents had probable cause to believe that child pornography existed on at least one computer associated with the IP address at appellant's residence, and they asked appellant to help narrow down the scope of the search. The agents correctly informed appellant that, under the scope of the search warrant, they could take all of the computers but they believed that was a waste of everyone's time. The agents honestly apprised appellant of the situation and asked if he was willing to help. Under the circumstances, the agents' approach was reasonable and we do not discern any undue or improper coerciveness.
The agents did not make any direct or implied promises to appellant. He was repeatedly told that the issue of punishment was not up to the agents, and it was a prosecutor who would decide that issue. The agents never represented that the police, the prosecutor or the court would grant appellant a particular benefit if he made admissions. (See People v. Hill (1967) 66 Cal.2d 536, 549 [promises of more lenient treatment make statements involuntary].)
Finally, we briefly note that appellant's opinions, Saldana and Torres, do not assist him in establishing that his statements were the result of coercion. Both Saldana and Torres are distinguishable and they do not compel reversal of appellant's judgment. Unlike in those cases, appellant was provided with Miranda warnings before he made incriminating statements. The agents told appellant he was not under arrest and he was free to stop the questioning. Appellant did not undergo questioning that was persistent, confrontational, or accusatory. Instead, the agents informed appellant about their investigation, and they gave him an opportunity to explain his situation. Saldana and Torres are inapposite.
Based on the totality of the circumstances, the prosecution met its burden of establishing by a preponderance of the evidence that appellant's incriminating statements were voluntary. We reject any assertion that the agents brought influences upon him that overcame his will to resist. Nothing reasonably suggests that appellant may have confessed to a crime he did not commit. Both appellant's characteristics and the details of this interview establish that his confession was free of coercion. Accordingly, appellant's interview was admissible at his trial, and the lower court did not err in denying the multiple motions to suppress his statements.
We do not reach appellant's arguments regarding prejudice because the lower court did not err in denying the various motions to suppress.
V. The Trial Court Did Not Abuse Its Discretion In Prohibiting The Defense From Turning On Appellant's Laptop During Trial And Any Presumed Error Is Harmless.
During trial, the defense requested permission to turn on appellant's laptop so the jury could view its contents. The trial court denied this request. Appellant contends the trial court's ruling deprived him of a fair trial, and denied his constitutional rights to (1) introduce evidence; (2) present a meaningful defense; and (3) fully confront Wiens. He maintains his conviction should be reversed and this matter remanded with instructions to permit him "full access to publish the entire contents of the actual computer at trial."
A. Background.
We provide a relevant summary of facts necessary to understand and resolve this claim.
1. The parties each had a copy of appellant's hard drive to conduct their respective forensic reviews and appellant's laptop was moved into evidence at trial.
In February 2013, the parties entered into a stipulation allowing for a "forensic working image of the hard drive taken from [appellant's laptop] to be provided" to appellant's computer forensic expert.
At trial in 2016, both Wiens and Lawson testified they had forensically reviewed a copy of appellant's hard drive. Appellant's laptop was moved into evidence as People's exhibit 4.
2. Wiens's relevant trial testimony.
Wiens testified at trial that, when conducting his forensic analysis, he never powered on appellant's laptop to maintain the integrity of that evidence. He testified that, if a laptop is turned on, it "immediately" makes changes to itself.
During Wiens's trial cross-examination, he was asked several times whether someone would be able to see or play the child pornography files located on appellant's laptop if that computer was turned on. Wiens answered, "Possibly." Wiens explained he could not recall "the status" of the laptop, and what was on its desktop. He had never turned on the laptop to check this issue.
Wiens explained an average computer user would likely not find the illegal files on appellant's hard drive, but someone with an "advanced computer ability" could "easily find" these files because they are allocated to a file structure. Wiens testified he did not know if he could reconstruct the "exact state" that appellant saw the files "based on the hardware, software, and any other variables involved."
Wiens testified during trial cross-examination that he did not know appellant's level of computer expertise. It was Wiens's understanding that appellant was "the IT person" for his family's business. Wiens admitted at trial that he never found any type of "special software" on appellant's laptop that would permit appellant to view and play files that had been deleted.
3. The defense requested permission to turn on appellant's laptop, which the trial court denied.
After Wiens testified it was perhaps possible to see the illegal files on appellant's laptop, the defense requested permission to turn on the laptop in court. A bench conference occurred and, when that concluded, the court stated it was not going to allow the defense to turn on appellant's laptop. The court noted that Wiens had never turned on that computer when conducting his forensic review.
Wiens resumed testifying and defense counsel asked him if it was possible to turn on the laptop using a copy of appellant's hard drive so the jury could see what "was running" when appellant was using that hard drive. Wiens said he did not know, but he clarified that "we wouldn't be able to make [an] exact copy and then put it into a different laptop and have it react the same as the original piece of evidence. So there's-there's of [sic] a lot of variables involved in the current hard drive. Using it in a different computer it's not going to interact and react as it would in the original piece of evidence." Wiens could not say "with certainty" whether a computer could play a copy of the hard drive. Different components and drivers were involved. "There's many different factors involved in the technology of a computer."
Defense counsel asked Wiens if it was possible for the jurors to view a copy of the hard drive to see if the files have or have not been deleted. Wiens responded, "I'm not saying it can't be accomplished. The forensic-or the images that I showed yesterday are from that copy of the hard drive. So I've showed them four images plus a video of allocated files saved and stored on the forensic image of the laptop." Wiens said he did not know if it was possible to use a computer to view the copy of the hard drive and see it just as appellant had viewed it when using the laptop. Wiens said there were "a lot of variables" and he did not "have the experience with doing what you are saying. Um, so I don't know."
Defense counsel asked Wiens if there was a way to view the hard drive so the jury could determine which expert was correct. Wiens stated that if Lawson is "stating something and I'm stating something different, I think [that] weighs down to our experience and training." Wiens later testified that it was perhaps possible the jurors could see the contents of the hard drive just as appellant would have seen it. Wiens said he did not know if he could "reconstruct it in the exact state that [appellant] saw it based on the hardware, software, and any other variables involved. It would be a difficult task to recreate it the way that he saw it on the date that the images and videos were on his computer." However, it was "possible."
During a subsequent break, the defense requested a hearing under Evidence Code section 402 to permit Lawson to testify about turning on the laptop and accessing it. The court indicated it would not allow the laptop to be turned on because it was an admitted exhibit and its form could be altered. Defense counsel asked if any more "litigation" about this issue would occur. The following relevant comments occurred:
"THE COURT: … [The laptop] as an original exhibit has now been admitted into evidence. And unless anybody can provide testimony to the court in good faith to establish that by turning on a computer the computer is not altered in any form, I'm not going to allow it. If you are making a good faith representation that a forensic expert will testify that by pushing the power button on the computer it does not change the data by one single piece, then I'll consider the request.
"[DEFENSE COUNSEL]: I could not proffer that to the court. What I could proffer to the court is that the data that would be changed is the access to the-when Windows is turned on, but it would not change any of the relevant data.
"THE COURT: But, [defense counsel]-and I appreciate that. But the issue for an exhibit is no longer relevant data. It is an admitted exhibit. So once the exhibit is in the record, the court can't allow that exhibit to be altered in any way. It would be as if we had a photograph and somebody wanted to add something to the photograph, we use a different photograph. So the reason-so the record is clear, so if there's ever a challenge to it that I'm not allowing the laptop to be turned on, is because that would alter the evidence. It is now admitted into the record. So-and I'll allow testimony on that. I'll surely allow you to discuss that with your expert in front of the jury to explain it. But as the judicial officer in charge of the evidence, I can't allow it to be altered."
The parties then addressed a different issue. However, the parties later returned to this issue. According to appellant's counsel, the defense understood the court's position that the laptop had been introduced into evidence and, if it were turned on, the information stored there could be altered. The defense, however, asserted that such a change "would not be material to the disputed issues in this case" and the computer contained "relevant and material evidence" that could impeach Wiens's testimony.
Defense counsel argued the information on the laptop represented exculpatory evidence that supported appellant's statements to the police. Defense counsel asserted that appellant's constitutional rights were implicated regarding a fair trial, confrontation of witnesses, and to present evidence in his defense. Defense counsel reminded the court that, under the California Constitution, the jury had the right to hear all relevant evidence.
In response, the trial court stated it had listened to both experts regarding their "different perspectives" about whether or not the illegal files had been deleted. It was the court's understanding that Wiens believed these files were not deleted in the sense that "something" (whether a remnant or a complete file) was still present on the laptop's hard drive. In contrast, Lawson testified that "deleted" meant a file was "no longer accessible." So, while the fragment of a file was there, nobody would be able to view, display or play the file.
The following relevant comments were made.
"THE COURT: [¶] … [¶] Turning on the computer today adds nothing to [the experts' disagreement] because we're now at February 17th, 2016. The condition of the computer today would do nothing to clarify what the availability of the material was at the time that [appellant] had the computer. And it will add nothing to that to the jury. And further, the computer has now been admitted into evidence. And I listened to both experts clearly. And both experts said if you turn on the computer today, you change the data. And from a forensic perspective, that is more than significant, because now you are changing the data. And the argument is closed. All right?
"[DEFENSE COUNSEL]: May I put the reason-the reason why [Wiens] testified that these files were accessible to the user and that would not be-the defense proffered that would not be true if we were able to turn the computer on and bring it up. And it showed [appellant's] state of mind also.
"THE COURT: What you are asking-frankly, what you are asking, [defense counsel], is to recreate the situation. What you are really saying is we need to turn it on today so we can recreate for the jury what [appellant] saw on March 30th, 2011. And that's not possible from the court's perspective. So I've put that on the record that if the computer were turned on today that would not be an adequate representation of what happened on March 30th. And, additionally, it would modify evidence that has been admitted into the record."
The prosecutor made some comments which are not relevant to our discussion. The following statements then occurred.
"THE COURT: The point that I think a lot of people are missing here is, um, it's not what's forensically available now. It's what was forensically available for those 20 minutes [when the illegal files were downloaded]. So if-if the jury is to conclude that those files came in and [appellant] looked at them and then deleted them and they are no longer accessible, there's evidence from which the jury could convict. So what it's really getting at is what's the relevancy today of the condition of the computer at the moment he turned it off?
"So let's assume for the moment that we turned on the computer today. And as we turned on the computer both [Wiens and Lawson] came in and tried to access the files. And they couldn't access the files. That doesn't-they both-that's not the issue. The issue-the issue is could [appellant] access them before he deleted them? Because everybody agrees that those files were deleted. We just don't agree what the definition of 'deleted' means.
"[DEFENSE COUNSEL]: No. I don't think [Wiens] would testify they were deleted.
"THE COURT: That's the argument that is going to be up to the jury to decide, interpreting [Wiens's and Lawson's] testimony. But it is clear. And the issue before the jury is going to have to be, what was [appellant's] ability to view, possess those files in that time period between the time they came in and the time they were deleted? The condition of the computer afterwards, even if it could be recreated is-well, if there is any relevancy it's substantially outweighed by the danger of unfair prejudice, given the amount of time we've already taken litigating these issues. So I'm not going to allow the computer to be turned on."
According to appellant, Lawson provided testimony that contradicted Wiens's opinion that the laptop could not be turned on without changing the relevant files. Appellant, however, provides no citation to the record to support this assertion. Our review of the record discloses that Lawson agreed some information would change if a computer is turned on and is accessed. At a minimum, "Windows" would activate and update, which would change the hash value of the hard drive.
B. Standard of review.
Appellant acknowledges that an abuse of discretion standard is normally used when reviewing a lower court's evidentiary ruling. However, he argues such a standard is inappropriate here because his constitutional rights were violated. We disagree. As we discuss later in this opinion, appellant's constitutional rights were not violated. In any event, our Supreme Court has rejected efforts to inflate "garden-variety evidentiary questions into constitutional ones." (People v. Boyette (2002) 29 Cal.4th 381, 427.) A due process violation occurs only where evidentiary error results in the complete preclusion of a defense. (Id. at pp. 427-428; accord, People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4; People v. Thornton (2007) 41 Cal.4th 391, 452-453.)
Because the court was asked to make a ruling involving trial evidence, we will review that decision for an abuse of discretion. (People v. Flores (2020) 9 Cal.5th 371, 409.) Under that standard, we will not disturb the ruling unless the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis.
Appellant raises numerous arguments in support of this claim. He asserts he "was portrayed (without evidence) as a pervert [who] could easily access [the illegal files] at any time from an obvious link on the main screen of his computer and that anyone using the computer would be presented [with] these obvious links and would know the character of the contents of the computer." He contends this false impression went against "the reality" that he had deleted the illegal files, which were "no longer viewable or accessible" to him once he turned off his laptop.
Appellant maintains that the information on his laptop was relevant evidence because a disputed issue of fact existed regarding whether or not the illegal files were viewable and accessible on his computer. He argues that Wiens ignored the fact that he (Wiens) used special forensic software (EnCase) to access the child pornography, but Wiens testified that the illegal files were accessible and viewable. Appellant notes he did not possess special forensic software to view the illegal files. He contends he should have been permitted under Evidence Code section 356 to publish "the entire content" of his laptop after the prosecution was permitted to move the laptop into evidence and "publish excerpts" of its files to the jury. He asserts that, if he had been permitted to publish the "actual computer screens" from his laptop, he "could have directly address[ed] this disputed issue with dispositive relevant evidence." He maintains the jury was deprived of "conclusive proof" he had deleted the illegal files and they were not accessible. He insists that, without this evidence, the jury was not able to "fully weigh" the conflicting trial testimony. Finally, he contends this evidence would have (1) provided "direct relevant evidence" supporting his affirmative defense that he had disposed of (deleted) the contraband; (2) established with direct evidence that, after deleting the illegal files, he could not thereafter access them; and (3) impeached Wiens's allegedly false testimony. He argues the prosecution provided "no viable scientific procedure" to support how Wiens reached his conclusions, which he describes as "unsound[.]" Appellant contends the court denied him "access to the only evidence that could have proved in a meaningful way that [Wiens's] scenario was false." According to appellant, the trial court failed to recognize that Wiens had created "a false scenario" regarding whether the illegal files had been deleted, and whether they were still accessible. Appellant also asserts the court failed to understand that Wiens's opinion "had created a false scenario" regarding what appellant had viewed.
In his reply brief, appellant asserts that Wiens's opinion was "flawed" regarding whether the illegal files were accessible and not deleted. For the first time in his briefing, appellant cites People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013 (Frye), in arguing that Wiens's expert opinions were not valid. At no time in either his opening brief or his supplemental opening brief did appellant raise Kelly/Frye. We also note that respondent did not mention Kelly/Frye in its brief. Because appellant raised Kelly/Frye for the first time in his reply brief, we will not entertain those arguments because it is unfair to the other party. (People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219.)
We find appellant's numerous arguments unpersuasive. Because we address appellant's various assertions, we first discuss two issues involving forfeiture.
1. We reject respondent's assertion that appellant has forfeited his constitutional challenges.
Respondent contends that appellant failed to preserve his constitutional challenges due to a failure to raise them below. We disagree. In arguing this matter to the trial court, appellant's counsel asserted that appellant's federal constitutional rights were implicated regarding a fair trial, confrontation of witnesses, and to present evidence in his defense. Defense counsel also reminded the court that, under the California Constitution, the jury had the right to hear all relevant evidence. Therefore, we reject respondent's assertion that appellant has forfeited his constitutional challenges, and we will review those issues.
2. Appellant has forfeited his assertion the trial court erred in not permitting him to publish a copy of his hard drive to the jury.
Appellant argues in his reply brief that he "was denied pursuing the publication of the contents of the hard drive, by any means, which logically included the production of a functioning (mirror) copy of the hard-drive." He contends the trial court should have permitted him "the opportunity to obtain a mirror image of the hard-drive in order to present that to the jury." We deem that this particular argument is forfeited.
"A defendant ordinarily cannot obtain appellate relief based upon grounds that the trial court might have addressed had the defendant availed himself or herself of the opportunity to bring them to that court's attention." (People v. Fuiava (2012) 53 Cal.4th 622, 655; see also Evid. Code, § 353, subd. (a) [a defendant must make a "specific" objection before an evidentiary finding will be reversed on appeal]; People v. Dykes, supra, 46 Cal.4th at p. 756 ["trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal"].)
Appellant suggests it was futile for him to ask the trial court to publish the contents of his hard drive through a different computer. According to appellant, the court's comments when ruling on this issue showed that further discussion would not be considered. Appellant notes that the court stated it was not going to allow any further action to be taken even if the laptop could be recreated. Appellant argues the court's comments "effectively served to deny the [d]efense the opportunity to obtain a mirror image of the hard-drive in order to present that to the jury." We disagree.
The court's lengthy exchange with defense counsel showed the court's willingness to consider this issue and to explore options. At no time, however, did appellant ask the court to consider publishing the contents of the hard drive by installing that hard drive into another computer. "A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.)
Under these circumstances, appellant has forfeited his argument that he should have been permitted to publish a copy of his hard drive to the jury. He never asked the trial court to rule on that specific request. Consequently, we will not address that specific issue.
Even if forfeiture did not occur for this specific issue, we also conclude that any presumed error is harmless beyond any reasonable doubt.
3. Evidence Code section 356 is inapplicable.
Appellant relies on Evidence Code section 356. In its entirety, that statute states: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
Appellant cites no authority for the proposition that his laptop qualifies as an "act, declaration, conversation, or writing" such that he was entitled to turn on his laptop at trial because the prosecution had introduced evidence taken from a forensic examination of a copy of the hard drive from that laptop. We reject appellant's assertion that this statute controls in this situation. Based on its plain language, Evidence Code section 356 is inapposite. In any event, even if this statute was applicable in this situation, we conclude below that the trial court did not abuse its discretion in ruling on this evidence.
4. The trial court did not abuse its discretion.
A trial court is vested with authority to control the judicial proceedings before it, and it is authorized to limit the introduction of evidence. (§ 1044; see also Code Civ. Proc., § 128, subd. (a)(5).) A court is permitted to exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effect; that is, if its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code, § 352.)
Here, the court explained its concerns about turning on the laptop. The court invited the defense to provide an offer of proof "that by pushing the power button on the computer it does not change the data by one single piece .…" Defense counsel could not make that offer of proof. Instead, defense counsel proffered that turning on the computer "would not change any of the relevant data." The court responded it could not permit the exhibit "to be altered in any way." The court said it would allow the defense to discuss this issue with its expert before the jury.
Moreover, the court noted that, even if turning on the laptop had some relevancy, any relevancy was "substantially outweighed by the danger of unfair prejudice, given the amount of time we've already taken litigating these issues. So I'm not going to allow the computer to be turned on."
The trial court's concerns about maintaining the integrity of the laptop, which had already been moved into evidence as a trial exhibit, appears reasonable and valid. We also agree with the court's assessment that permitting the defense to turn on the laptop would have resulted in the undue consumption of time. (Evid. Code, § 352.)
Although a dispute existed about whether or not appellant had deleted the illegal files, it was undisputed that he had downloaded child pornography. The issue for the jury was not whether any deleted child pornography files were still accessible on appellant's laptop. Instead, the jury was required to determine whether or not appellant had (1) "knowingly possessed or controlled a matter depicting a person under the age of 18 years old personally engaging in or simulating sexual conduct[;]" and whether or not (2) he "knew that the matter depicted a person under the age of 18 years old personally engaging in or simulating sexual conduct."
The jurors were instructed that appellant was not guilty if he had accidentally downloaded the child pornography. The jurors were also told that appellant was not guilty if a reasonable mistake of fact had occurred. The jurors were told that, if they found appellant believed that the material downloaded to his laptop "was not matter depicting a minor engaging in or simulating sexual conduct, and if you find that belief was reasonable, he did not have the intent or mental state required for possession or control of matter depicting a minor engaging in or simulating sexual conduct. If you have a reasonable doubt about whether [appellant] had the intent or mental state required for possession or control of matter depicting a minor engaging in or simulating sexual conduct, you must find him not guilty."
We reject appellant's assertions that the trial court did not understand the issues. To the contrary, the court understood properly that the issue was appellant's intent when he downloaded the illegal files and whether he had access to those illegal files on the night in question. Whether or not the illegal files appeared on appellant's laptop at the time of trial was an evidentiary issue that the court properly deemed involved an undue consumption of time. (See Evid. Code, § 352.)
Based on this record, we will not disturb the trial court's evidentiary ruling. It did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) The ruling does not fall outside the bounds of reason. (See People v. Williams, supra, 17 Cal.4th at p. 162.) Thus, an abuse of discretion is not present and we will not reverse appellant's conviction.
5. Appellant's constitutional rights were not violated.
A trial court's ruling rejecting certain evidence concerning the defense does not constitute a refusal to allow a criminal defendant the right to present a defense. (People v. Fuiava, supra, 53 Cal.4th at pp. 665-666; People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Likewise, the main purpose of the confrontation clause of the United States Constitution is to secure the opportunity for cross-examination. "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 19-20.)
In this matter, the trial court's ruling did not prevent appellant from presenting his defense or arguing this issue to the jury. Indeed, the court encouraged appellant's counsel to raise this issue with Lawson in front of the jury. The court's ruling also did not prevent the defense from cross-examining Wiens. As such, appellant's federal constitutional rights were not infringed based on the court's evidentiary ruling.
Finally, the California Constitution has the "Right to Truth-in Evidence" paragraph that states "relevant evidence shall not be excluded in any criminal proceeding .…" (Cal. Const., art. I, § 28, subd. (f)(2).) By its own terms, however, this constitutional provision does not impact certain enumerated statutory rules of evidence, including Evidence Code section 352. (Cal. Const., art. I, § 28, subd. (f)(2).)
In 1982, the voters approved Proposition 8 (approved June 8, 1982), which added the constitutional "Right to Truth-in-Evidence" provision that is now found in California Constitution, article I, section 28, subdivision (f)(2). The provision, which generally requires the admission of relevant evidence in a criminal proceeding, provides in pertinent part: "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding .… Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103." (Cal. Const., art. I, § 28, subd. (f)(2).)
Here, the trial court prohibited appellant from turning on his laptop before the jury, at least in part, based on Evidence Code section 352. The court stated it believed this issue would result in the undue consumption of time. Because the court based its evidentiary ruling on Evidence Code section 352, the "Right to Truth-in Evidence" provision of the California Constitution is inapplicable. We reject appellant's various assertions that he suffered either state or federal constitutional violations stemming from the court's ruling.
6. Any presumed error is harmless.
Finally, we conclude that any presumed error was harmless. Even if the defense was improperly denied the right to turn on appellant's laptop in open court, or improperly denied the right to display the contents of the hard drive through another computer, the government has established beyond a reasonable doubt that these alleged errors did not contribute to the verdict rendered against appellant. (See Chapman, supra, 386 U.S. at p. 24.) Overwhelming and conclusive evidence established that appellant had possessed or controlled child pornography in violation of section 311.11, subdivision (a). The evidence convincingly demonstrated appellant engaged in sporadic searches for child pornography over a year using the term "pedo" wherein he repeatedly found and downloaded files that contained explicit images and videos of prepubescent children engaging in sexual acts with adults. Any presumed error in failing to publish the contents of appellant's hard drive at the time of trial was certainly unimportant in relation to everything else the jury considered regarding appellant's guilt. (See Yates v. Evatt, supra, 500 U.S. at p. 403.) In other words, the guilty verdict rendered in this trial was surely unattributable to these presumed errors. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Accordingly, prejudice did not result. Appellant's arguments are wholly without merit and this claim fails.
VI. The Trial Court Did Not Err In Failing To Instruct The Jury Regarding The Affirmative Defense Of Momentary Or Transitory Possession Of Child Pornography.
Appellant contends the trial court prejudicially erred in failing to instruct the jury on the affirmative defense of momentary or transitory possession of child pornography. He insists his trial was rendered fundamentally unfair, and he seeks reversal of his conviction.
A. Background.
Appellant requested the trial court to instruct the jury with language based on CALCRIM No. 2305 regarding the affirmative defense of momentary or transitory possession. In general, this affirmative defense applies when a defendant takes momentary or transitory possession of contraband for the purpose of disposal. (People v. Martin (2001) 25 Cal.4th 1180, 1191 (Martin).)
CALCRIM No. 2305 generally applies to the transitory or momentary possession of controlled substances.
CALCRIM No. 2305 informs jurors that, if they conclude a defendant possessed contraband, that possession was not illegal if the defendant can prove the defense of momentary possession. To establish this defense, the defendant must prove three elements: (1) the defendant possessed the contraband only for a momentary or transitory period; (2) the defendant possessed the contraband in order to abandon it, or dispose of it, or destroy it; and (3) the defendant did not intend to prevent law enforcement officials from obtaining the contraband. (CALCRIM No. 2305.)
The trial court denied appellant's request to instruct the jury with either CALCRIM No. 2305 or language taken from it. The court determined no testimony existed from which a reasonable jury could conclude appellant downloaded child pornography in order to dispose of it. The court noted that, to the contrary, appellant had claimed he did not knowingly download child pornography.
B. The standard of review.
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, which are necessary for the jury's understanding of the case. (Ibid.)
In determining whether the evidence is sufficient to warrant a jury instruction, a trial court does not determine the credibility of the defense evidence, but, instead, must determine whether evidence exists which, if believed by the jury, is sufficient to raise a reasonable doubt. (People v. Mentch (2008) 45 Cal.4th 274, 288.) We review de novo a claim that a trial court failed to give a required jury instruction. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Waidla (2000) 22 Cal.4th 690, 733.)
C. Analysis.
Appellant asserts he was denied his fundamental due process rights when the trial court refused to instruct the jury on the affirmative defense of momentary or transitory possession of contraband. He claims he was relying on this defense at trial, and he argues substantial evidence supported it. He maintains the court misapplied the law. He insists that, for this affirmative defense to apply, he was not required to show that he knew he was downloading child pornography or that he downloaded it for the sole purpose to delete those files. Instead, he claims this defense could apply if he learned he possessed child pornography after downloading the files and he immediately deleted the illegal material.
Appellant notes it was the content of the illegal files, and not their titles, which constituted a crime of possession of child pornography. He insists he never knew he had downloaded child pornography until he actually opened the files and discovered their content. He maintains he "immediately" deleted the child pornography once he examined the files. He notes that public policy encourages the destruction of contraband.
The trial court noted that the titles on the illegal files, without more, did not constitute a violation of section 311.11, subdivision (a).
Respondent opposes appellant's arguments. First, respondent asks us to strike this claim because appellant failed to comply with the California Rules of Court. In the alternative, respondent contends the trial court properly refused to instruct the jury on the affirmative defense of transitory possession. Respondent argues this defense was inconsistent with appellant's theory of the case, and it was not supported by substantial evidence.
Although we deny respondent's request to strike this claim, we agree with respondent that instructional error did not occur. We reject appellant's arguments.
1. We deny respondent's request to strike this claim.
Respondent argues this court should strike this claim because appellant's opening brief is not in compliance with the California Rules of Court. According to respondent, although appellant's opening brief contains some references to the record, those references are deficient and sometimes inaccurate. At times, appellant failed to include citations to the record to support his assertions.
We agree with respondent that appellant's opening brief fails at times to comply with the California Rules of Court. Some of appellant's assertions lack clear citations to the record and, as his counsel admitted, certain citations were incorrect. In that regard, the opening brief is deficient. However, similar to the approach we took earlier in this opinion, we decline to strike this claim. However, we will consider as waived any conclusory point which appellant asserted without argument and authority. (In re S.C., supra, 138 Cal.App.4th at p. 408.) Nevertheless, it is apparent respondent was able to provide a meaningful response to the assertions which appellant raised. Thus, we will proceed to the merits of this claim. (See Cal. Rules of Court, rule 8.204(e)(2)(C) [an appellate court may disregard any briefing noncompliance].)
2. Evidence did not support an instruction regarding the affirmative defense of momentary or transitory possession.
In People v. Mijares (1971) 6 Cal.3d 415 (Mijares), our Supreme Court held that, under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it can constitute a defense to a charge of criminal possession of the controlled substance. (Id. at p. 419.) Following Mijares, our Supreme Court has extended this affirmative defense to the "momentary or transitory possession of contraband for the purpose of disposal .…" (Martin, supra, 25 Cal.4th at p. 1191.) Our Supreme Court has also recognized that this affirmative defense may apply to the possession of child pornography under section 311.11, subdivision (a). (See In re Grant (2014) 58 Cal.4th 469, 479 (Grant).)
In Martin, our high court stated:" 'When a defendant relies on the Mijares defense, he or she essentially admits the commission of the offense of simple possession of narcotics: The defendant exercised control over the narcotics, he or she knew of its nature and presence, and possessed a usable amount. [Citation.] However, the defendant additionally asserts that he or she possessed the narcotics for the limited purpose of disposal, abandonment, or destruction. Mijares does not serve to negate an element of the offense of possession of narcotics. Instead, it offers a judicially created exception of lawful possession under certain specific circumstances as a matter of public policy, similar to the defenses of entrapment and necessity.'" (Martin, supra, 25 Cal.4th at p. 1191.) Although there is no specific intent element for the crime of simple possession of controlled substances, "brief or transitory possession of narcotics with the intent to dispose of the contraband can establish the Mijares defense of transitory possession." (Id. at p. 1191, fn. 9.)
In this matter, the parties disagree whether or not appellant "deleted" all of the child pornography that he downloaded on March 29, 2011. Respondent argues the child pornography "still existed" and was recoverable on appellant's hard drive. In contrast, appellant contends both CPS and EnCase support his position that he deleted the contraband. He asserts that, if he had not deleted the illegal files, he could not rely upon the affirmative defense of momentary or transitory possession. As such, he argues "it does indeed matter" whether he deleted the files, and claims this was the key issue related to this affirmative defense.
To resolve this claim of alleged instructional error, we need not fully respond to the parties' arguments regarding whether or not appellant "deleted" the child pornography. We also need not address whether or not deletion of the illegal files was key to this affirmative defense. Instead, our analysis presumes that appellant deleted the child pornography files on his laptop so that they were no longer accessible to him and no longer playable without specialized software which appellant did not possess. Even with such a presumption, however, the trial court did not err in failing to instruct the jury with language taken from CALCRIM No. 2305.
We review three of appellant's cited opinions: (1) Tecklenburg, supra, 169 Cal.App.4th 1402; (2) People v. Petrovic (2014) 224 Cal.App.4th 1510 (Petrovic); and (3) Grant, supra, 58 Cal.4th 469. None of appellant's cited authorities establish instructional error in this matter.
The trial court cited and relied on Tecklenburg in declining to instruct the jury with language from CALCRIM No. 2305.
a. Tecklenburg.
In Tecklenburg, the defendant was found guilty of six misdemeanor counts of possession or control of child pornography. (Tecklenburg, supra, 169 Cal.App.4th at pp. 1404-1405.) The Tecklenburg court found substantial evidence supported the defendant's convictions, and it affirmed the judgment. (Id. at p. 1420.)
The Tecklenburg court held that an image of child pornography displayed on a computer screen can qualify under section 311.11 as an "object" that "can be knowingly possessed or controlled." (Tecklenburg, supra, 169 Cal.App.4th at p. 1418.) In Tecklenburg, the defendant repeatedly searched the Internet for child pornography and he viewed those images. The defendant had been "manipulating the display of such images on his computer screen" and "enlarged some of the images from thumbnail views." (Id. at p. 1419.) Because he "knowingly possessed or controlled images of child pornography" on his computer, the appellate court held that he had violated the statute. (Ibid.)
Tecklenburg gave additional examples of conduct that may violate section 311.11: (1) actively downloading and saving child pornography to a computer; (2) printing child pornography; or (3) e-mailing child pornography. (Tecklenburg, supra, 169 Cal.App.4th at p. 1419, fn. 16.)
Relevant to the issue before us, the Tecklenburg court stated, "Although a few states have prohibited the viewing of child pornography, we do not interpret section 311.11, subdivision (a), as doing so. We conclude defendant here knowingly possessed or controlled images of child pornography in violation of section 311.11, subdivision (a), because the evidence, viewed in the light favorable to the judgment, demonstrates defendant intentionally used his home and work computers to find, access, and peruse through quantities of child pornography, manipulating the display of such images on his computer screen." (Tecklenburg, supra, 169 Cal.App.4th at p. 1419, fn. omitted.)
b. Petrovic.
In Petrovic, supra, 224 Cal.App.4th 1510, the defendant was convicted of possession or control of child pornography with a prior conviction for child molestation. (Id. at p. 1512.) At trial, the defense stipulated that three illegal videos had been found on the defendant's computer. However, it was argued the illegal material was located in a temporary file and not saved directly on the hard drive. The defendant contended he did not know his computer had the capability to save files in this fashion. (Id. at p. 1513.) On appeal, the defendant claimed there was no evidence to support a finding he had knowingly possessed or controlled child pornography on his computer. He asserted he had only used his computer to visit child pornography Web sites, and such conduct is not a crime under section 311.11. (Petrovic, supra, at p. 1513.) He insisted the data found by law enforcement on his computer was automatically saved by the computer when he went to Web sites. (Id. at p. 1514.) On appeal, the defendant relied on the Tecklenburg language that it did not interpret section 311.11, subdivision (a), as prohibiting the viewing of child pornography. (Petrovic, supra, 224 Cal.App.4th at p. 1515, citing Tecklenburg, supra, 169 Cal.App.4th at p. 1419.)
The Petrovic court concluded that Tecklenburg's "problematic dictum could be read to mean the viewing of child pornography is not a criminal offense under section 311.11. If this were so, Tecklenburg's judgment of conviction would not have been affirmed. We interpret this dictum to mean that those who unintentionally view child pornography or unknowingly download it on their computers are not in violation of section 311.11." (Petrovic, supra, 224 Cal.App.4th at p. 1515.)
The Petrovic court found that sufficient evidence supported the defendant's conviction. A reasonable inference existed the defendant had intentionally used his home computer to find, access and peruse quantities of child pornography. He deliberately displayed those images on his computer screen. (Petrovic, supra, 224 Cal.App.4th at p. 1517.) Evidence showed that the defendant repeatedly visited child pornography Web sites, and his parole conditions prohibited him from viewing that material. He had told his parole agent that he lacked access to the Internet, which showed a consciousness of guilt. At trial, the defendant had stipulated that three videos were prohibited material under section 311.11, and the defendant had made no showing that his case involved an inadvertent or unintentional acquisition or possession of the offensive material. (Petrovic, supra, at p. 1517.) The judgment was affirmed. (Id. at p. 1518.)
c. Grant.
In Grant, our Supreme Court disbarred an attorney after he was convicted of felonious possession or control of child pornography (§ 311.11, subd. (a)). (Grant, supra, 58 Cal.4th at p. 472.) The attorney had admitted he was obsessed with pornography, and he had "accumulated more than 300, 000 computer images of adult pornography. He admitted having in his 'possession or control' two pornographic images of children, but maintained he did not solicit them." (Id. at p. 473.) The attorney claimed he had found the images of child pornography repugnant, and he had" 'instantly'" deleted them. He claimed they had remained on his computer without his knowledge. However, he had pleaded guilty because he and his attorney had interpreted Tecklenburg, supra, 169 Cal.App.4th 1402, to hold that even the fleeting computer display of an unsolicited image of child pornography violates section 311.11, subdivision (a). (Grant, supra, 58 Cal.4th at pp. 473-474.)
The attorney argued his conviction should not subject him to summary disbarment, contending section 311.11, subdivision (a), does not always involve moral turpitude. (Grant, supra, 58 Cal.4th at p. 475.) Our Supreme Court rejected that argument, holding such a crime was"' "extremely repugnant" '" and it necessarily involved moral turpitude for purposes of attorney discipline. (Id. at pp. 476-477.) Our high court also rejected the attorney's argument a person could be convicted of possession of child pornography even for unknowingly possessing such images. The Supreme Court noted that the attorney's testimony had been rejected as "unbelievable" regarding his claim he had not knowingly possessed the illegal images. In any event, it was "unfounded" a crime might occur if a person "innocently receives unsolicited material, discovers it contains child pornography, and immediately destroys the material or reports it to law enforcement .…" (Grant, supra, 58 Cal.4th at p. 479.) The Supreme Court also noted that the handling of a narcotic for the sole purpose of disposal does not constitute possession, and a felon's momentary control of a firearm for purpose of disposal or self-protection likewise is a defense to possession charges. (Ibid.) Our high court held it was appropriate to apply these" 'momentary possession' holdings" in the context of child pornography. (Ibid.)
In the present matter, appellant contends the trial court's reliance on Tecklenburg was misplaced in light of the concerns Petrovic stated about Tecklenburg's "problematic dictum .…" (Petrovic, supra, 224 Cal.App.4th at p. 1515.) Appellant also cites Grant, supra, 58 Cal.4th 469, for the proposition he was permitted to download a file, learn it contained child pornography, and then delete it without violating the law.
We disagree with appellant's various assertions. None of appellant's cited authorities establish instructional error in this matter. Instead, the evidence did not support the affirmative defense of momentary or transitory possession.
3. Evidence did not support the affirmative defense of momentary or transitory possession of child pornography.
Sufficient evidence did not support giving a jury instruction in this matter using language taken from CALCRIM No. 2305. No testimony existed from which a reasonable jury could conclude appellant possessed child pornography for the purpose of abandoning it, disposing of it, or destroying it. (See CALCRIM No. 2305.) To the contrary, appellant had claimed at trial that he did not knowingly download child pornography. He denied knowing what he was going to receive when he downloaded the files on March 29, 2011. He asserted he had been looking for adult pornography. Appellant's own testimony runs counter to this affirmative defense.
Moreover, the trial evidence overwhelmingly demonstrates that, on March 29, 2011, appellant again intentionally sought out and downloaded pornography using a search term, pedo, that had only one reasonable purpose-to locate files involving underaged children engaged in sex acts. The evidence conclusively establishes that appellant downloaded these files with the intent to find pornography that either aroused him or interested him. On March 29, 2011, appellant again searched for and found files with explicit titles, some of which overwhelmingly suggested they contained child pornography. He chose to download those files, and he perused at least 17 files that depicted underage children performing sex acts. In previewing those images, he deliberately displayed illegal pictures and videos on his computer screen.
At trial, Lawson agreed that "pedo" is a common search term for people looking for child pornography. Appellant testified at trial that, in 2011, he was "unaware" what the term "pedo" meant. However, he acknowledged telling the agents he had looked up that term in an urban dictionary. Appellant agreed at trial that none of pedo's definitions suggested it would lead to adult pornography.
Based on this record, the trial court did not err in refusing to instruct the jury with language taken from CALCRIM No. 2305. The evidence did not reasonably raise the affirmative defense of momentary or transitory possession of child pornography. We reject appellant's assertions that the trial court did not understand the law or that it misapplied the law. Appellant's arguments are without merit, and this claim fails.
Respondent argues that the affirmative defense of momentary or temporary possession cannot apply in this situation because appellant had no ability to delete the original child pornography files. Appellant disputes that position, contending (1) this issue was never raised in the trial court and (2) the ability to delete original illegal files is not a requirement for this affirmative defense. We need not resolve these disputed points because the trial evidence did not support instructing on this affirmative defense in the first place. (See CALCRIM No. 2305.)
Because the trial court did not err, we do not reach appellant's arguments regarding prejudice, including his assertion that "structural error" may have resulted from the court's refusal to instruct the jury with language taken from CALCRIM No. 2305.
VII. Prosecutorial Misconduct Did Not Occur And Any Presumed Error Is Harmless.
Appellant raises a broad claim of prosecutorial misconduct, which rests on four grounds: (1) the prosecution failed to correct Wiens's alleged false and/or misleading testimony; (2) the prosecution violated Brady and suppressed evidence; (3) the prosecution failed to dismiss this matter, or correct the conviction, after being placed on notice that Wiens provided alleged false and/or misleading testimony; and (4) the prosecution failed to enforce appellant's Miranda rights.
Appellant also contends the prosecutor violated the following ethical obligations: (1) a duty not to suppress evidence; (2) a duty to provide impeachment evidence or information; (3) a duty to correct false and/or misleading testimony; (4) a duty to correct a false conviction; (5) a duty to supervise Wiens and take "appropriate action" once he provided defective testimony; and (6) a duty to protect appellant's Miranda rights.
Appellant argues that the prosecution's failure to "immediately correct" Wiens's allegedly false and/or misleading testimony at the preliminary hearing "should have resulted in the dismissal of the entire Information." He further maintains the prosecution's failure to correct this testimony at trial should have resulted in appellant "being granted a new trial." Appellant cites numerous opinions, and we will focus on four of appellant's cited authorities: (1) Napue; (2) People v. Hill (1998) 17 Cal.4th 800, 814 (Hill); (3) People v. Zaheer (2020) 54 Cal.App.5th 326 (Zaheer); and (4) People v. Force (2019) 39 Cal.App.5th 506 (Force). Appellant asserts the present matter is" 'rife with serious error'" and his conviction must be reversed.
On April 26, 2021, appellant filed a brief with this court alerting us of Zaheer, supra, 54 Cal.App.5th 326. In general, appellant contends that Zaheer supports his arguments regarding prosecutorial misconduct. Appellant requested leave to file supplemental briefing regarding Zaheer. On April 28, 2021, this court accepted appellant's document as a letter to the court informing us of the new authority. We determined that, if we needed supplemental briefing, we would inform the parties that further briefing was requested.
On September 9, 2019, appellant filed a brief with this court alerting us of Force, supra, 39 Cal.App.5th 506. In general, appellant contends that Force supports his arguments regarding due process and a fair trial. Appellant requested leave to file supplemental briefing regarding Force. On September 11, 2019, this court denied appellant's motion to file an additional supplemental opening brief. We deemed appellant's brief to be a letter informing us of Force. We ruled that we could, at a later date, request the parties to file supplemental briefing if needed.
Finally, appellant contends the prosecutor provided untrue or misleading statements during closing argument. The prosecutor informed the jury that "the bottom line is the reports provided by the defense to the prosecution from [Lawson] were not inconsistent with [Wiens's] testimony at the preliminary hearing." Further, the prosecutor told the jury that this issue "gets confusing and it's gobbledygooky." Appellant maintains that, with these comments, the prosecution continued to "minimize and excuse" Wiens's alleged improper testimony. Appellant insists that this issue was not confusing and Wiens "just refused to accept the objective results indicated" by EnCase and CPS.
We reject appellant's various arguments. We first summarize the prosecutor's closing arguments. Second, we address and grant appellant's request for judicial notice which he filed in support of this claim. Third, we hold that this record does not establish prosecutorial misconduct. Finally, we determine that any presumed prosecutorial misconduct or ethical violations were harmless beyond any reasonable doubt.
The parties dispute whether or not appellant has forfeited his claim of prosecutorial misconduct. We need not resolve that dispute because this claim fails on its merits and any presumed error was harmless.
A. The prosecutor's closing arguments.
At the beginning of her arguments to the jury, the prosecutor noted that both experts had agreed child pornography had been found on appellant's laptop. The prosecutor reminded the jury it was not a crime if appellant "accidentally" downloaded the child pornography. Instead, he had to knowingly possess it.
The prosecutor reminded the jury that on January 4, 2011, Wiens had accessed CPS and he had found an IP address that was sharing suspected child pornography over a peer-to-peer network. According to the prosecutor, those files were being shared from that IP address as early as July 2008 through December 2010. The prosecutor reminded the jury that Wiens had not testified that child pornography was being made available from that IP address on January 4, 2011. Instead, that was the date he looked at the historical data, which showed that this location had been making child pornography available to others.
The prosecutor based these dates on the Summons that was issued to obtain appellant's physical address. The Summons sought subscriber information from July 16, 2008, through December 8, 2010.
The prosecutor argued that, according to the CPS report, child pornography files had appeared at appellant's IP address as early as 2008. Appellant had repeatedly used a peer-to-peer file sharing network to search for these files. He had received explicit titles that strongly suggested the content contained child pornography. This was strong circumstantial evidence of appellant's intent to find and possess child pornography. According to the prosecutor, this was not a one-time mistake. Instead, the circumstantial evidence showed that appellant repeatedly searched for child pornography, found it, viewed it, and possessed it.
The prosecutor argued that, after searching for these files, appellant had clicked on them to download. She argued the crime was complete once he previewed those files because there was "possession or control in that moment."
The prosecutor acknowledged to the jury that the parties had spent a lot of time on whether these illegal files would have been accessible to appellant at the time his laptop was seized on March 30, 2011. She stated it was the government's position that these files were accessible to appellant. However, she told the jury that, even if they accepted Lawson's position, the crime still occurred. Even under Lawson's standard, appellant previewed the illegal videos, which showed possession and control on March 29, 2011.
The prosecutor reviewed appellant's statements to law enforcement. She noted that he had admitted that law enforcement would "probably" find something improper on his laptop. Appellant had admitted he had looked at child pornography sporadically for over a year. The prosecutor noted that appellant's admission was consistent with Wiens's discovery that someone at appellant's IP address had been sharing child pornography files since 2008.
According to the prosecutor, "This is someone who admits he does it. He feels bad about it. But then he can't help himself. He gets curious again." The prosecutor argued that appellant had acknowledged knowing his behavior was wrong.
The prosecutor argued that appellant's act of deleting the child pornography was further circumstantial evidence demonstrating his consciousness of guilt. Appellant had admitted to law enforcement that he used the term "p-e-d-o" to search for these files. Although appellant had stated that he was not looking for prepubescent children, he had repeatedly used the search term pedo, which resulted in files containing explicit titles and depicting child pornography. The prosecutor argued that appellant repeatedly had used that term because he was interested in looking at child pornography.
The prosecutor acknowledged that the parties had spent "a lot of time" in court disputing "whether it was deleted and not deleted, and playable or not playable." She noted that the experts had been "diametrically opposed" regarding "whether a file was deleted forensically or deleted by the user." She told the jurors it was their "job" to decide this issue and determine whom to believe. She stated that the jury was not required to accept any of the experts' testimony as true or correct, which also applied to the prosecution's expert.
The prosecutor argued to the jurors that it did not matter which expert they believed. Instead, Lawson had located files that had been downloaded to appellant's laptop which had titles that were "indicative of child pornography." Appellant had started downloading the files at approximately 11:12 p.m. Over 30 minutes later, appellant deleted all of the files. According to the prosecutor, this contradicted the idea that appellant had been looking for adult pornography. Instead, he used" 'pedo'" to find files that had "very explicit titles."
According to the prosecutor, appellant had previewed some of the files. The prosecutor told the jurors that, after 30 minutes, appellant knew his behavior was wrong and he deleted the files. She argued that this showed appellant's "control and possession" because he also went into the "Incomplete folder" and deleted the files that had not fully downloaded. The prosecutor asserted that this established proof beyond a reasonable doubt that appellant was guilty.
Following appellant's argument to the jury, the prosecutor made her rebuttal argument. She stated that, according to Wiens, the illegal files were still "allocated. And by anybody's definition that means there's a file name." She argued that Lawson had "come up" with the term," 'structured unallocated.'" She asserted that nobody in the forensic community had heard of that term. The prosecutor argued that Lawson's reports "were not inconsistent" with Wiens's testimony at the preliminary hearing. She stated that "the bottom line is that [Wiens] never said that the user didn't delete [the files]. What he was asked was did you find any deleted files? And he said truthfully no. Because at that point he hadn't looked in the unallocated space. And then you heard he went back and that's why there's a second report. And he did exactly that. He looked in that unallocated space. And then he did find that two additional files that he did say were deleted. So it gets confusing and it's gobbledygooky."
The prosecutor stated to the jury that "a difference of opinion" regarding what constitutes "a deleted file" does not mean someone is lying. She argued that the evidence in this case is "crystal clear." The prosecutor referenced appellant's statements to law enforcement in which he had admitted looking at child pornography and he had admitted that he had initially started to masturbate to it. Appellant, however, had stated it did not really arouse him. He stated he thought he was going to like to see it, but he did not. Appellant admitted that 99 percent of the time he thought this was wrong. The prosecutor asked the jury to return a guilty verdict.
B. We grant appellant's request for judicial notice.
To support his claim of prosecutorial misconduct, appellant asserts that the prosecution violated various ethical duties. On November 8, 2017, appellant filed a request for judicial notice with this court, asking that we review an order from the California Supreme Court expediting approval of a rule regarding the special responsibilities of a prosecutor. Respondent did not oppose this request, but respondent questions how the requested material is relevant.
On November 30, 2017, this court issued an order deferring a ruling on appellant's request pending consideration of the appeal on its merits. We now grant the request for judicial notice. (See Evid. Code, § 452, subd. (d) [we may judicially notice records of any court of this state].) We judicially notice that, in 2017, the California Supreme Court granted expedited approval of proposed amendments to Rule 5-110 of the California Rules of Professional Conduct. As we discuss below, this rule delineates certain responsibilities for prosecutors.
This rule has subsequently been renumbered as rule 3.8 of the California Rules of Professional Conduct.
C. The California Rules of Professional Conduct impose special responsibilities on a prosecutor.
A prosecutor may not use improper methods to obtain a conviction. (Berger v. United States (1935) 295 U.S. 78, 88.) A prosecutor is held to an elevated standard of conduct because he or she represents and exercises a state's sovereign power. (Hill, supra, 17 Cal.4th at pp. 819-820.)
In part, the California Rules of Professional Conduct impose the following special responsibilities on a prosecutor:
1. A prosecutor must make reasonable efforts to assure that an accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel. (Rules Prof. Conduct, rule 3.8(b).)
2. A prosecutor must make timely disclosures to the defense of all evidence or information known to the prosecutor that the prosecutor knows (or reasonably should know) tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence (unless relieved by a protective order of the tribunal). (Rules Prof. Conduct, rule 3.8(d).)
3. A prosecutor must exercise reasonable care to prevent persons under the supervision or direction of the prosecutor, including investigators and law enforcement personnel, from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6. (Rules Prof. Conduct, rule 3.8(e).)
In general, rule 3.6 of the California Rules of Professional Conduct prohibits an attorney from making extrajudicial statements that the attorney knows or should reasonably know will (1) be disseminated by means of public communication, and (2) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
4. When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, a prosecutor must (1) promptly disclose that evidence to an appropriate court or authority; and (2) if the conviction was obtained in the prosecutor's jurisdiction, (a) promptly disclose that evidence to the defendant unless a court authorizes delay, and (b) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of any offense that the defendant did not commit. (Rules Prof. Conduct, rule 3.8(f).)
With these ethical rules in mind, we analyze whether the prosecutor committed misconduct. We conclude that misconduct did not occur and any presumed error was harmless beyond any reasonable doubt.
D. The prosecutor did not render this trial fundamentally unfair or rely on reprehensible methods to persuade the jury.
"Due process is denied when a prosecutor knowingly uses perjured testimony to obtain a conviction. [Citations.]" (People v. Marshall, supra, 13 Cal.4th at pp. 829- 830.) A criminal conviction cannot be obtained through the use of false testimony. If so, the conviction must be reversed based on the Fourteenth Amendment of the United States Constitution. (Napue, supra, 360 U.S. at p. 269.) The same result occurs when a state, although not soliciting false evidence, allows it to go uncorrected. (Ibid.) This principle also applies to false testimony that impacts a witness's credibility. (Ibid.)
A prosecutor commits reversible misconduct under the federal Constitution if his or her conduct infects the trial with such unfairness as to deny due process. (People v. Penunuri (2018) 5 Cal.5th 126, 149; People v. Sattiewhite (2014) 59 Cal.4th 446, 480.) Misconduct that falls short of a federal due process violation may nevertheless violate state law if it "involves the use of deceptive or reprehensible methods to persuade the court or jury." (People v. Watkins (2012) 55 Cal.4th 999, 1031.)
In this matter, we reject appellant's contention that the prosecutor infected the trial with such unfairness as to deny due process, or that she used deceptive or reprehensible methods to persuade the jury. We have already concluded that Wiens did not provide false and/or misleading testimony. We have already explained why a Brady violation did not occur. Appellant's admissions to law enforcement were properly admitted at trial.In short, the prosecutor did not seek a conviction based on tainted evidence.
Because appellant has forfeited his Miranda claim and because appellant's statements to law enforcement were properly admitted at trial, we reject appellant's assertion that the prosecutor violated an ethical duty in allegedly failing to ensure that appellant's Miranda rights were protected.
Further, we conclude that the prosecutor's closing arguments were proper. She was permitted to fully state her views regarding what the evidence established and to urge whatever conclusions she deemed proper. (See People v. Panah (2005) 35 Cal.4th 395, 463.) The prosecutor was permitted to make strongly worded and vigorous arguments, and to ask the jury to draw reasonable inferences and deductions from the trial evidence. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1330.)
It is clear the prosecutor sought to convict appellant based on his repeated behavior of downloading child pornography using the search term "pedo" to find the illegal files. The prosecutor argued that appellant had previewed the files as they downloaded to his laptop. The prosecutor asked the jury to resolve the dispute that existed between the experts. Prosecutorial misconduct does not appear in this record and appellant's cited authorities do not assist him.
1. Napue.
In Napue, the state's principal witness in a murder trial incorrectly testified that he had received no promise of consideration in return for his testimony. In fact, the witness was serving a prison sentence of 199 years for the same murder, and the government's attorney had promised him consideration in return for his testimony. The state's attorney did nothing to correct the false testimony. (Napue, supra, 360 U.S. at p. 265.) Based largely on this witness's testimony, the jury convicted the defendant and he was sentenced to 199 years. (Id. at p. 266.)
The United States Supreme Court stated that the Fourteenth Amendment of the United States Constitution is violated when a conviction is obtained through false evidence, and the state is obligated to correct false evidence even when it is not solicited. (Napue, supra, 360 U.S. at p. 269.)" 'A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.'" (Id. at pp. 269-270.) The Napue court concluded that, had the jury been apprised of the true facts, it might have concluded that the witness had fabricated testimony in order to curry favor with the prosecuting attorney. (Id. at p. 270.) The court disagreed that "no constitutional infirmity" occurred stemming from the false testimony. (Id. at p. 271.) The Supreme Court reversed the defendant's judgment because its evaluation of the record showed that the false testimony used by the state in securing the conviction "may have had an effect on the outcome of the trial." (Id. at p. 272.)
2. Hill.
In Hill, the California Supreme Court reversed a judgment that involved, in part, convictions for first degree murder and robbery. The defendant's trial had been rendered "fundamentally unfair" from a combination of prosecutorial misconduct and other errors. (Hill, supra, 17 Cal.4th at p. 815.) The prosecutor had committed "numerous acts" of misconduct during the guilt phase. (Id. at p. 819.) These included (1) misstating the evidence (id. at p. 823); (2) referring to facts not in evidence (id. at p. 827); (3) misstating the law (id. at p. 829); (4) derisive comments and actions towards defense counsel (id. at p. 832); and (5) intimidating witnesses (id. at p. 834). In addition, the court found multiple instances of prosecutorial misconduct during the penalty phase. (Id. at pp. 836- 839.) Finally, our Supreme Court concluded that the trial court had also committed various errors. (Id. at p. 844.) Based on the number of the instances of prosecutorial misconduct, together with the other trial errors, the high court held that the defendant had been denied a constitutionally fair trial. A reversal was required. (Id. at p. 847.)
3. Zaheer.
In Zaheer, the defendant was tried twice for sexual battery by restraint. In his first trial, he was nearly acquitted of the two felonies with which he was charged. In the second trial, however, he was convicted of both felonies. (Zaheer, supra, 54 Cal.App.5th at p. 329.) On appeal it was determined that the defendant had received ineffective assistance of counsel. The defense attorney in the second trial failed to introduce certain evidence from the first trial which had tended to raise reasonable doubt. Moreover, during the second trial, the prosecutor "seized on this oversight to suggest for the first time" a different factual theory. (Ibid.) Because this case "hinged entirely" on whether the jury believed the victim, the appellate court concluded prejudice had occurred following defense counsel's error, which was compounded by the prosecutor's improper comment. (Ibid.) The judgment was reversed and the case remanded for further proceedings. (Ibid.)
4. Force.
In Force, the defendant was a sexually violent predator who sought a conditional release. (Force, supra, 39 Cal.App.5th at p. 510.) At the evidentiary hearing, the prosecutor impermissibly infringed on the defendant's constitutional right to testify by raising the prospect of perjury before trial. (Id. at p. 511.) The appellate court held that prosecutors may not "engage in conduct that undermines the willingness of a defense witness to take the stand. [Citation.] Such conduct includes making statements to the effect that the witness would be prosecuted for any crime he or she committed in the course of testifying, such as perjury. [Citation.]" (Id. at p. 514.) The appellate court reiterated that a prosecutor" 'has a special duty commensurate with a prosecutor's unique power, to assure that defendants receive fair trials.' [Citation.]" (Id. at p. 516.) The court found that the prosecutor's interference caused prejudice. (Id. at p. 519.) The Force court reversed the order denying the petition for conditional release, and the matter was remanded for a new trial. (Id. at p. 522.)
Appellant's cited authorities do not assist him. The prosecutor in this matter presented her case to the jury, and she asked the jurors to resolve the dispute that existed between the experts. The prosecutor explained why she believed the government had proven its case beyond any reasonable doubt even if the jurors accepted Lawson's opinions and rejected Wiens's disputed testimony.
The prosecutor did not misstate the evidence or argue improperly. Unlike in Napue and Hill, the prosecutor did not render appellant's trial fundamentally unfair. Unlike in Zaheer, the prosecutor did not take advantage of ineffective assistance of counsel to argue a fact that was counter to the evidence from an earlier trial. Unlike in Force, the prosecutor did not infringe on appellant's constitutional right to testify. Appellant's authorities are distinguishable.
Based on this record, the prosecutor did not infect the trial with unfairness amounting to a due process violation. (See People v. Penunuri, supra, 5 Cal.5th at p. 149; People v. Sattiewhite, supra, 59 Cal.4th at p. 480.) Likewise, the prosecutor did not use deceptive or reprehensible methods to persuade the court or jury. (See People v. Watkins, supra, 55 Cal.4th at p. 1031.) Misconduct did not occur and this claim fails. In any event, we also conclude that any presumed prosecutorial misconduct or ethical violations were harmless.
E. Any presumed prosecutorial misconduct or ethical violations were harmless.
In the absence of prejudice to the fairness of a trial, prosecutorial misconduct does not trigger reversal of a criminal conviction. (People v. Bolton (1979) 23 Cal.3d 208, 214.) To reverse under state law, the challenged conduct must raise a reasonable likelihood of a more favorable verdict. To reverse under federal law, a reviewing court must be unable to conclude that the challenged conduct was harmless beyond a reasonable doubt. (People v. Blacksher (2011) 52 Cal.4th 769, 828, fn. 35; see also Chapman, supra, 386 U.S. at p. 24.)
Here, we reject any assertions that the prosecutor infected the trial with unfairness, or that appellant's due process rights were violated. However, even if we presume that prosecutorial misconduct occurred, prejudice did not result. The prosecution established with overwhelming evidence that appellant possessed or controlled child pornography in violation of section 311.11, subdivision (a). After reviewing this record, we can declare beyond any reasonable doubt that the prosecutor's alleged misconduct did not contribute to the verdict.
We likewise reject appellant's arguments that reversal is required because the prosecutor allegedly breached ethical duties. To reverse a criminal judgment, an alleged breach of ethical rules must have impacted the verdict. (People v. Maury (2003) 30 Cal.4th 342, 408.) In this matter, it is abundantly clear that the alleged ethical violations, either viewed in isolation or collectively, were harmless beyond any reasonable doubt.
Accordingly, any presumed error is harmless. Appellant's various arguments are unpersuasive and this claim fails.
VIII. The Lower Court Did Not Err In Denying Appellant's Various Motions To Dismiss This Action.
Appellant asserts the lower court erred in not granting six separate motions he filed which either sought dismissal of this action, or invited the court to exercise its discretion to dismiss this action.
A. Background.
Appellant filed the following six motions seeking to dismiss this action:
(1) In June 2012, appellant filed a motion seeking to dismiss the information. In general, this motion asserted that appellant's statements to law enforcement should be suppressed as involuntary, and the prosecution had failed to prove the elements of the charges without relying on his extrajudicial statements. In August 2012, the court denied this motion.
(2) In September 2014, appellant filed a renewed motion seeking to dismiss the information. In November 2014, appellant filed a supplement to this motion. In general, appellant's motion asserted that Wiens had created a "false impression" that appellant had access to the illegal files, and those files were available for distribution over the Internet. Appellant renewed the assertions from his prior motion.
In November 2014, the court denied this motion.
(3) In August 2015, appellant filed a nonstatutory motion seeking to set aside the information. In August 2015, appellant filed a supplement to this motion. In general, appellant's motion asserted in substantial part that Wiens had provided false and/or misleading testimony that the illegal files had not been deleted.
In August 2015, the court denied this motion. The court stated that, when Wiens testified at the preliminary hearing and testified that the illegal files were not present, an "unartful" question had been posed to him. The court also did not believe a Brady violation had occurred. The court stated "some ambiguity" had occurred during the preliminary hearing. The court believed computer issues "are extremely complicated" and a perspective that a deleted file is no longer present on the computer may be both technically correct and incorrect "because that file may still be present in slack space, though I'm reading now well beyond the preliminary hearing. But the reason I'm stating this on the record is because it does not appear to this Court, based upon what was reviewed and the motion submitted, as well as the preliminary hearing transcript, to raise to the level of a [Brady] violation. As I said, it's unartful questioning and testimony about a very technical subject. Further, both parties are now fully aware." The court invited the defense to raise this issue during cross-examination at trial.
To assist the reader, we provide this disputed testimony again from the preliminary hearing. Defense counsel asked Wiens if it was his testimony that the illegal files "were not deleted from the computer?" Wiens responded, "No. They still physically existed on the computer's hard drive." Counsel asked, "Were any files deleted of child pornography?" Wiens responded, "Not that I have knowledge of during my examination of this, of the computer."
(4) In October 2015, appellant invited the lower court to exercise its authority pursuant to section 1385 to dismiss the charges. In this filing, appellant asserted (in part) that Wiens had provided false and/or misleading testimony during the preliminary hearing. Appellant claimed that Wiens's false testimony, along with the prosecutor's actions, had deprived him of various constitutional rights.
In November 2015, the court denied this motion. The court stated it had "reviewed all the pleadings. I believe all of these matters have been addressed time and time again. I do not believe that there's any basis for reconsideration of any motion that has previously been denied."
(5) In January 2016, appellant filed a renewed nonstatutory motion to set aside the information. He asserted that the prosecutor had withheld Brady material prior to the preliminary hearing.
At the hearing, the court stated its belief this was "a battle of the experts." The court did not see a Brady violation but, instead, this was a dispute of opinion. The court determined it would permit the experts to testify at trial and, if a Brady violation was established, it could then grant the nonstatutory motion to dismiss the action. The court denied the motion without prejudice.
Later during the same hearing, the trial court commented that it did not appear that the materials from the alleged Brady violation, if they had been provided prior to the preliminary hearing, would have caused the magistrate to dismiss the case.
(6) During motions in limine, appellant again raised (as motion in limine No. 1) his renewed nonstatutory motion to dismiss. After hearing the trial evidence, the court denied this motion.
B. Analysis.
Appellant argues he was denied the right to cross-examine Wiens and put on an affirmative defense at the preliminary hearing. He claims he demonstrated that Wiens's preliminary hearing testimony was false and/or misleading.
According to appellant, the issue about whether he deleted the files was relevant in determining if his affirmative defense of momentary or transitory possession applied. He contends "deleting a file disposes of the contraband." He asserts the lower court erred in not dismissing this action prior to trial because he established both a Brady violation and "Napue error" stemming from the prosecutor's failure to correct the alleged false testimony. He argues the court erred by denying his motions pursuant to section 1385.
Appellant's assertions are without merit. Before turning to the merits of his claims, we briefly summarize statutory and nonstatutory motions to dismiss.
1. Motions pursuant to section 995.
Section 995 authorizes a court to set aside an information if (1) the defendant was not "legally committed by a magistrate" and (2) the defendant was committed "without reasonable or probable cause." (§ 995, subd. (a)(2)(A) & (B).) When reviewing the trial court's ruling on a section 995 motion, an appellate court conducts an independent review of the evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 654.) An information will not be set aside" 'if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' [Citation.]" (Ibid.)
2. Motions pursuant to section 1385.
Section 1385 provides that a judge may dismiss an action in the furtherance of justice. (§ 1385, subd. (a).) A defendant, however, has no right to make such a motion, but must instead" 'invite the court to exercise its power'" and" 'the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 375.) A trial court should exercise its powers and grant a dismissal in the interests of justice if the" 'balance falls clearly'" in the defendant's favor. (Ibid.) An abuse of discretion standard is used to review a trial court's denial of a motion to dismiss the information brought under section 1385. (People v. Memro (1995) 11 Cal.4th 786, 835-836.)
3. Nonstatutory motions to dismiss.
Section 995 is not the exclusive authority for setting aside an information. (Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1144.) A nonstatutory motion to dismiss is permissible in certain circumstances and is the appropriate mechanism to challenge an alleged error that is not reflected in the preliminary hearing transcript and which might require an evidentiary hearing. (Ibid.; People v. Duncan (2000) 78 Cal.App.4th 765, 772; Stanton v. Superior Court, supra, 193 Cal.App.3d at p. 271.) An "independent review standard" is used for an issue involving a mixed question of law and fact. (People v. Ault (2004) 33 Cal.4th 1250, 1264-1265, fn. 8.)
In contrast, a motion under section 995 is appropriate where the preliminary hearing transcript contains the alleged error entitling the defendant to dismissal of the information. (People v. Harris, supra, 225 Cal.App.4th at p. 1144.)
4. Appellant's arguments are without merit.
We reject appellant's claim that error occurred. We have already concluded the following in this opinion: (1) Wiens did not provide false and/or misleading testimony; (2) a Brady violation did not occur and appellant would have been held to answer for count 1 even if the disputed Brady materials had been provided in advance of the preliminary hearing; (3) the prosecutor did not commit misconduct; and (4) the prosecutor was not required to correct Wiens's testimony.
We agree with the lower court, which informed the defense during one particular hearing below that "some ambiguity" had occurred during the preliminary hearing involving "unartful questioning and testimony about a very technical subject." That dispute, however, did not give rise to a Brady violation, and the parties were well aware of this issue before trial. The defense was invited to raise this issue during trial cross-examination. We likewise agree with the lower court which informed the defense during a different hearing that the issue involving Wiens's disputed testimony did not merit dismissing the action but, instead, represented a conflict of opinion between opposing experts. We determine that the lower court did not err in denying appellant's various motions to dismiss this action.
IX. The Trial Court Properly Denied A Motion For New Trial.
In June 2016, appellant filed a motion below seeking a new trial. He raised numerous grounds, including instructional error, prosecutorial misconduct and insufficiency of the evidence.
In August 2016, the trial court denied the motion for a new trial. The court said it had reviewed the jury instructions which had been provided in this matter, and the court found them proper. The court recalled that the instruction regarding "momentary possession" was inapplicable because appellant had never testified that he had searched for child pornography in order to destroy it. The court noted its belief that appellant's admissions to law enforcement were, without more, sufficient to satisfy the jury's verdict.
The court stated that both Wiens and Lawson were able to testify fully at trial. The court reiterated its belief that it was not appropriate to permit the defense to turn on appellant's laptop during trial. The court said it had reviewed all of the claims raised in the motion. It denied the motion and proceeded to sentencing.
Appellant argues the trial court erred in denying his motion for a new trial. His claim is based on the following six assertions:
(1) Alleged instructional error occurred when the trial court failed to instruct the jury with language taken from CALCRIM No. 2305 regarding the affirmative defense of momentary or transitory possession.
(2) An alleged Brady violation occurred stemming from the prosecution's failure to provide certain information to the defense prior to the preliminary hearing.
(3) Wiens provided allegedly false and/or misleading testimony which "lightened" the prosecution's burden of proof. Appellant contends he was deprived of "substantial rights to have the jury find beyond a reasonable doubt whether he illegally possessed the contraband."
(4) Alleged prosecutorial misconduct occurred. Appellant maintains that the prosecutor elicited, condoned and failed to correct Wiens's testimony, which violated her ethical duties under Napue and its progeny.
(5) Appellant was not allowed to publish the contents of his laptop to the jury. Appellant argues he was deprived a fundamental constitutional right to confront Wiens.
(6) The evidence is insufficient to support the verdict.
We address each of these claims. Before doing so, however, we first address appellant's implied assertion that we must review the record in search of grounds for why the trial court denied the motion for a new trial. We deem that appellant has waived any issue and/or argument that he failed to raise in his opening brief in support of this claim.
A. Appellant is deemed to have waived any issue and/or argument that he failed to raise in his opening brief in support of this claim.
In raising this claim in his opening brief, appellant seems to suggest he may incorporate by reference all of the legal and factual arguments he made in his filings below and present those claims en masse to this court for review. He contends he submitted "substantial federal and state legal authority" in the lower court "to support the granting of a new trial." He states that he "does not concede any of the court's findings should he not discuss each of them herein; he disputes all of the trial court's findings and asserts that the trial court abused its discretion in denying the new trial motion."
We reject appellant's suggestion that this court must scour the record to find impermissible grounds upon which the trial court may have denied his motion for a new trial. Appellant was obligated in his opening brief to state the facts upon which his claim rests and to provide a citation to the record wherein those facts may be found. (Cal. Rules of Court, rule 8.883(a)(1)(B).) He was also required to provide legal argument with citation of authorities for his points. A failure to comply with these requirements may result in waiver. (People v. Wilkinson, supra, 33 Cal.4th at p. 846, fn. 9.)
We will only address the six specific issues which appellant has raised in his opening brief in support of this claim. We hereby deem that appellant has waived any other issues and/or arguments he failed to assert in raising this claim.
B. The trial court properly denied the motion stemming from the arguments raised in claims (1) through (5).
Claims (1) through (5) have already been analyzed and rejected in this opinion. The trial court did not err in failing to instruct the jury regarding the affirmative defense of momentary or transitory possession. A Brady violation did not occur. Wiens did not provide false and/or misleading testimony requiring reversal of the judgment. The prosecutor did not commit misconduct. Finally, the court did not err in declining to permit the defense to turn on appellant's laptop during trial. Accordingly, we reject appellant's arguments regarding the issues he raised in points (1) through (5). A new trial was not warranted stemming from those issues, and the trial court properly denied the motion based on those assertions.
C. Sufficient evidence supports the verdict.
In appellant's sixth issue, he contends a new trial should have been ordered based on insufficiency of the evidence. He argues he established at trial that he deleted all of the child pornography files, and those files were neither viewable nor accessible to him. He asserts Wiens's opinion testimony lacked credibility. He maintains that, once Wiens's allegedly false and/or misleading testimony "is removed from consideration, there is no evidence to support a conviction."
Appellant's assertions are wholly without merit. The prosecution established with overwhelming evidence that appellant possessed or controlled child pornography in violation of section 311.11, subdivision (a). It was undisputed at trial that illegal files were found on appellant's laptop.
The trial evidence conclusively established that appellant had held an intent to possess child pornography. Appellant admitted to law enforcement agents he had been searching for child pornography sporadically for over a year using "P-E-D-O" as his search term. He looked at child pornography in "bursts." He stated he had watched child pornography "a couple of times" but he claimed he did not like it. He stated he had "done it several times, stopped a year or two," but he became "curious again." He told the agents he could not explain why he looked at it.
Appellant admitted knowing that his actions were morally wrong. He admitted knowing that "real kids" were involved. He said he had previously "started to" masturbate to child pornography, but he said, "it doesn't do it for me." He stated, "[I]t's just one of those odd things that I think I'm going to like to see, and I don't." Appellant said he would like to know why he thinks he is going to like it sometimes. He explained to the agents that "99 percent of the time I'll tell you it's wrong." These statements demonstrate appellant's consciousness of guilt.
The titles on some of the downloaded videos contained explicit descriptions of its content. Although those titles, by themselves, do not establish the possession of child pornography, the explicit titles overwhelmingly suggested the illegal content contained inside. In light of his repeated behavior, an inference overwhelmingly exists that appellant was aware he was again downloading illegal child pornography when he conducted another search using the term "P-E-D-O" and he began downloading files on March 29, 2011.
Finally, appellant previewed the files as they downloaded on March 29, 2011. He made it clear when speaking with the agents that he would look at each file to determine if it was something he was interested in keeping.
The evidence does not reasonably suggest appellant inadvertently or unintentionally acquired or possessed the illegal material. To the contrary, the trial evidence overwhelmingly demonstrated that appellant purposefully sought out and downloaded pornography using a search term that was designed to locate files involving children engaged in sex acts. Appellant repeated this behavior wherein he searched for pornography on a peer-to-peer program using the term "pedo" and he located files to download. The evidence conclusively establishes that appellant downloaded these files with the intent to view the images and videos, and to find pornography that either aroused him or interested him. He received images and videos depicting underage children performing sex acts, and he deliberately displayed those images on his computer screen. We conclude that sufficient evidence supports the verdict.
Based on this record, the trial court did not err in denying appellant's motion for new trial. None of appellant's six stated grounds have merit. Consequently, reversal is not required, and this claim fails.
X. Cumulative Error Did Not Occur.
Throughout his briefs, appellant asserts he suffered cumulative error, requiring reversal of his judgment. In general, this claim is based on many of the alleged errors he has raised throughout his briefs, including prosecutorial misconduct and the trial court's various rulings. However, he also focuses this claim on the allegedly false and/or misleading testimony which Wiens provided. He contends the prosecution failed to correct Wiens's testimony, which violated due process and his right to a fair trial. He argues that, even though he "professed his innocence" from the beginning, Wiens provided repeated false statements that the illegal files were still accessible, they were not deleted, and they were playable without any special software. Appellant insists that Wiens's false testimony "permeated and tainted the entire investigation, the preliminary hearing, and the trial."
Appellant also claims the prosecutor provided misleading information to Wiens. At trial, Wiens testified it was his understanding (stemming from representations made to him by the prosecutor) that Lawson had located child pornography files on appellant's laptop. At trial, however, Wiens was unaware that Lawson had claimed before the trial started that the illegal files were not playable. Wiens was also unaware that Lawson had believed before trial that all of the illegal files had been deleted. Appellant insists the prosecutor made inaccurate representations to Wiens. Appellant argues that Lawson always opined that appellant had deleted the illegal files, those files were not playable, and they were not accessible without special recovery software, which appellant did not possess. Appellant contends that, if Wiens's trial testimony is to be believed, the prosecutor never "fully explored" Lawson's opinions that all of the illegal files had been deleted and were not playable.
Finally, appellant renews his arguments that the prosecutor provided confusing or contradictory statements to the jury during closing arguments. According to appellant, the prosecutor represented that Wiens "never said" that appellant "did not delete" the files. Appellant also insists the prosecutor "never contested" Lawson's findings that appellant had deleted the files. Appellant argues that, if the prosecution does not dispute the fact he had deleted the child pornography files, then his conviction should be reversed because his deletion demonstrates he "simply did not intend to possess the files." He also contends the prosecutor's closing remarks were "clearly contrary" to Wiens's testimony that the files were not deleted, that the files were still accessible, and that the files were playable. He maintains that "this notable contradiction" shows that the jury "would have been unable to arrive at a clear and precise understanding of the facts." He concludes that the prosecution's failure to correct Wiens's allegedly false and/or misleading testimony, coupled with the prosecutor's "contradictory argument," requires reversal of his conviction. We disagree. Cumulative error did not occur.
"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
Appellant's claim of cumulative error is without merit because we have rejected all individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) The defense was able to impeach Wiens and argue its position to the jury. The prosecutor was permitted to fully state her views regarding the evidence, and to urge whatever conclusions she deemed proper. (People v. Panah, supra, 35 Cal.4th at p. 463.) In any event, the trial court instructed the jurors that they alone were responsible for deciding the facts, and nothing the attorneys said constituted "evidence."
The prosecution established with overwhelming evidence that appellant possessed or controlled child pornography in violation of section 311.11, subdivision (a). Taking all of appellant's arguments and claims into account, we are satisfied he received a fair adjudication. Appellant's claim of cumulative error is without merit, and reversal is not required.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, J. PEÑA, J.