Opinion
F060256
01-03-2012
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO AGUILERA CAMACHO, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F08904960)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant/defendant Fernando Aguilera Camacho befriended a woman who lived in his neighborhood and often had her boys over to his house to perform chores and use his computer. One of the boys, 12-year-old L.Y., reported to his mother that defendant had been touching him. When the police arrived at defendant's house, they discovered that another boy, 16-year-old C.S., had been staying with defendant, and C.S. reported that defendant had sexually assaulted him. The police also discovered numerous sexually explicit photographs and videos that had been saved and/or downloaded to defendant's computer, cell phones, and a CD.
Defendant was charged with counts I, II, and III, committing lewd or lascivious acts on a minor under the age of 14 years old, L.Y. (Pen. Code, § 288, subd. (a)); counts IV, V, and VI, committing lewd or lascivious acts on a minor who was 14 or 15 years old and at least 10 years younger than defendant, C.S. (Pen. Code, § 288, subd. (c)(1); and count VII, oral copulation of a minor under the age of 18 years, C.S. (Pen. Code, § 288a, subd. (b)(1)). There were special allegations that defendant engaged in substantial sexual conduct with the victims (Pen. Code, § 1203.066, subd. (a)(8)), and multiple victims were involved (Pen. Code, § 1203.066, subd. (a)(7)).
Defendant was convicted of counts I through III, committing lewd acts on L.Y., and count VII, oral copulation of C.S. He was found not guilty of counts IV through VI, committing lewd acts on C.S., and the jury found the special allegations not true. He was sentenced to six years eight months in state prison.
On appeal, defendant contends the court abused its discretion when it admitted several of the sexually explicit photographs that were found at his house and argues the pictures lacked any probative value, were grossly prejudicial, and consisted of inadmissible character evidence. Defendant also contends his conviction for oral copulation with a minor must be reversed because there was evidence that C.S. told defendant that he was over 18 years old. Defendant further argues the prosecutor committed misconduct in closing argument when he asserted that the victims were being truthful. We will affirm.
FACTS
Jennie H. lived in Fresno and had four boys. Defendant lived near Jennie and her sons. They saw each other in the neighborhood, and they became friends. Defendant often visited Jennie and the boys at their house as he was walking his dog. Jennie trusted defendant and allowed her boys to earn money by performing yard work and other chores at defendant's house. The boys, particularly B.S. and L.Y., frequently went to defendant's house to mow the lawn and felt like they knew defendant pretty well.
B.S. and L.Y. were actually half brothers; Jennie was their mother, but they had different fathers. B.S. had another half brother, C.S., who did not live with Jennie. B.S. and C.S. had the same father but different mothers; C.S. and L.Y. were not related. C.S. lived with his father in Northern California. L.Y. - June 2008 incident (count I)
L.Y. was 14 years old at the time of trial. L.Y. testified that defendant frequently invited him into his house after he finished the yard work. L.Y. knew that defendant's adult nephews and his disabled father also lived at the house; the nephews were usually at work when L.Y. was at the house.
L.Y. testified that defendant allowed him to use a laptop computer, which was set up in defendant's bedroom. Defendant helped L.Y. work on the boy's MySpace page and post photographs on L.Y.'s page.
L.Y. testified about an incident that occurred in the last week of June 2008, when he was 12 years old and had just finished the sixth grade. L.Y. went to defendant's house to perform yard work and make some money. L.Y. asked defendant if he could use his computer and defendant said yes. L.Y. went into defendant's house and used the computer in his bedroom. L.Y. worked on his MySpace page for about 15 minutes and then defendant came into the bedroom. L.Y. sat on the bed while defendant used the computer.
L.Y. testified that defendant showed him "many pictures" on the computer, which showed "kids that were naked and with [defendant] doing stuff to them." At trial, L.Y. identified the four pictures that defendant showed him that day. Defendant told L.Y. that some of the photographs showed defendant doing things to his older brothers, B.S. and B.Y.
L.Y. testified he recognized his brother, B.S., in one of the photographs (exhibit No. 4). Exhibit No. 4 showed defendant orally copulating a male whose face was not visible, L.Y. testified he recognized B.S.'s distinctive plaid shorts in the background of the picture. L.Y. testified that defendant showed him photographic exhibit No. 7, and said B.S. was the boy that defendant orally copulated in that picture. Defendant accessed the photographs by opening a computer file which was named for B.S. and L.Y.; he incorrectly spelled L.Y.'s name.
L.Y. testified that after defendant showed the photographs to him, defendant said he would pay $10 to L.Y. "for everything he did." Defendant reached under L.Y.'s shorts and held his penis. L.Y. screamed at defendant to get away from him. L.Y. pushed defendant away and might have kicked him. Defendant held on to L.Y.'s body and then let go. As L.Y. headed for the door, defendant said he would get in trouble if L.Y. told anybody. Defendant handed cash to L.Y. as he walked out of the bedroom. L.Y. - July 2008 incident (count II)
L.Y. testified about an incident that occurred at defendant's house around July 4, 2008. L.Y. said he went back to defendant's house because he thought defendant would stop touching him. L.Y. went into defendant's bedroom to use the computer.
L.Y. testified that defendant told him to take off his clothes so he could take photographs, and L.Y. obeyed him. Defendant told L.Y. to pose in different positions on the bed, and L.Y. again obeyed him. Defendant took photographs of L.Y.'s naked body. Defendant touched L.Y. to show him how to get into particular poses. L.Y. identified two photographs found on defendant's computer as the pictures which were taken that day. The pictures showed L.Y.'s naked buttocks while he was bending over.
L.Y. testified that defendant removed his own clothes down to his underwear. Defendant said he wanted to orally copulate L.Y., but L.Y. refused. Defendant tried to perform the act, and he held L.Y. and pushed him down on the bed. L.Y. kicked defendant away, got off the bed, and put on his clothes. Defendant might have given $20 to L.Y. as he left.
L.Y. testified that defendant called him later, and told him to pick up an envelope in defendant's mailbox. L.Y. did so and found $20. L.Y. - third incident (count III)
L.Y. testified about a third incident, which began when defendant called L.Y.'s mother and said he had some work for L.Y. L.Y. walked to defendant's house, did the work, and then defendant let him use the computer in defendant's bedroom.
L.Y. testified that defendant entered the bedroom and lowered his pants. Defendant grabbed the back of L.Y.'s head and pushed it toward his penis. Defendant clenched his fist and threatened L.Y. not to tell anyone. Defendant again gave L.Y. money and L.Y. left. C.S. - counts IV, V, and VI
In July 2008, C.S. ran away from his father's home and arrived in Fresno. He did not have any money or a place to stay, so he visited his half brother, B.S., at Jennie's house. C.S. was 15 years old, but he arrived in Fresno a few days before July 27, 2008, which was his 16th birthday. B.S. was 17 years old that summer.
C.S. testified that B.S. suggested that they should go to defendant's house to hang out. C.S. did not know defendant and B.S. introduced them. C.S. testified that they went in the house and sat around. Defendant offered to tell C.S.'s fortune by reading cards. After awhile, defendant asked C.S. to step outside, and told C.S. that he had some work for him. Defendant offered to pay C.S. $10 if C.S. allowed defendant to perform an act of oral copulation on him, and another $10 for oral sex or masturbation.
C.S. testified he was shocked and surprised, but he agreed because he really needed the money. C.S. and defendant went into the bedroom, C.S. performed the sexual act, and defendant paid him. C.S. left defendant's house, and he stayed at a motel with B.S. that night. C.S. did not tell B.S. what happened.
C.S. testified he went back to defendant's house with B.S. the day after the first incident. Defendant offered C.S. to pay him for sex and C.S. agreed. Defendant and C.S. went into a different bedroom, undressed, and they performed acts of oral copulation and masturbation while on a couch.
C.S. told defendant that he needed a place to stay because his parents abused him. Defendant agreed that C.S. could stay at his house. Defendant took photographs of C.S., fully clothed and shirtless, while he stayed at the house. Defendant directed C.S. to pose for the photographs; C.S. was not posing in any sexually suggestive manner in these pictures. B.S. never took any photographs of C.S. C.S. testified that defendant once took a photograph of C.S.'s penis. B.S. found the photograph on defendant's camera and deleted it.
Defendant was found not guilty of the charges based on these incidents, counts IV, V, and VI, commission of lewd or lascivious acts against C.S., a child 14 or 15 years old (§ 288, subd. (c)(1)). C. S. - count VII
C.S. testified about an incident that occurred around 4:00 a.m. on the day that defendant was later arrested. C.S. was asleep on defendant's bed. Defendant woke up C.S. and told him to clean up the kitchen. As C.S. worked in the kitchen, defendant started to grab him and then asked to orally copulate C.S. C.S. agreed and they went into the bedroom. Defendant started to touch C.S., but C.S. said he couldn't perform the act. Defendant put on a pornographic tape and they engaged in an act of oral copulation. C.S. later performed an act of masturbation on defendant. Defendant paid C.S. $20 for the sex acts.
C.S. testified the police arrived at defendant's house later that day and arrested defendant. Arrest of defendant and search of his house
L.Y. testified that at some point in July 2008, B.S. talked to their mother about defendant. L.Y. was present during that conversation, and that is when L.Y. finally told their mother about what defendant did to him.
On July 26, 2008, Jennie called the police and reported L.Y.'s allegations.
On July 29, 2008, officers from the Fresno Police Department arrived at defendant's house, placed him under arrest, and searched the house pursuant to a warrant. The officers seized his laptop computer, cell phones, digital camera, and CDs. C.S. and B.S. were at defendant's house when the officers executed the search warrant. A semen sample was found on a bedroom couch, and it was determined that C.S. was a major contributor to the DNA. The photographs
Detective Holquin and James Lutter, the police department's computer forensic examiner, testified about the photographs found on defendant's computer and a CD found in his bedroom.
As we will discuss in sections I and II, post, the court held extensive evidentiary hearings, both prior to and during trial, as to the probative value and possible prejudice of all the sexually explicit photographs and videos that were found on the computer, CD, and cell phones in defendant's house. The court reviewed all the images with the attorneys in chambers, and then went back on the record to evaluate the admissibility of the proferred evidence. The court also heard foundational testimony from Detective Holquin and Mr. Lutter as to the location, description, and file names of the photographic evidence. The court made express findings as to the prosecution's proposed evidence, admitted several photographs as relevant and probative of defendant's sexual intent pursuant to Evidence Code section 1101, subdivision (b), and excluded many of the photographs and all of the videos as unduly prejudicial.
The CD contained photographic exhibit Nos. 4, 5, 6, and 7. Each of these four photographs showed defendant performing acts of oral copulation on a male whose face was not visible. At trial, L.Y. testified defendant showed him photographic exhibit Nos. 4, 5, 6, and 7 on the computer, just prior to the first time defendant touched him in June 2008. L.Y. testified that he recognized the male in exhibit No. 4 as his brother, B.S., even though the male's face was not visible, because that person was wearing plaid shorts. L.Y. specifically remembered when B.S. bought those particular shorts. L.Y. further testified that defendant told L.Y. that B.S. was depicted in exhibit No. 7, and L.Y. recognized B.S.'s body in that picture.
C.S. identified photographic exhibit Nos. 14 through 21 as pictures that defendant took of C.S. at defendant's house. These photographs showed Cody fully dressed or shirtless; he was not engaged in sexual acts or posed in sexually suggestive positions. A computer folder entitled "B.S." contained photographic exhibit Nos. 22 through 26, which showed L.Y. posing while fully clothed; L.Y. was not engaged in sexual acts or posed in sexually suggestive positions. L.Y. testified he took many of these photographs himself and used defendant's computer to place the pictures on his MySpace page.
The "B.S." folder also contained photographic exhibit Nos. 27 and 28, which show a male's naked buttocks with his pants at his knees; the male's face is not visible. L.Y. testified that he was the male in these two photographs. Defendant took these two photographs during the second incident in July 2008, when he told L.Y. to undress and pose for him.
Lutter testified about photographic exhibit Nos. 1 and 2, which showed an unknown male's shirtless back, and photographic exhibit No. 3, which appears to be that same male's naked buttocks. This person was not identified at trial.
Lutter testified about photographic exhibit No. 29, which showed an unknown naked teenage male, lying on a bed in a sexually suggestive position. Lutter testified this photograph was part of a series of two other closeup pictures of the same male's genitalia. Exhibit No. 29 was introduced into evidence and shown to the jury, but the other two photographs in the series were not admitted into evidence.
Lutter testified the computer also contained numerous photographs from downloaded files identified with sexually explicit names. These pictures included photographic exhibit No. 30, which showed a naked teenage male performing oral sex on another male, and photographic exhibit No. 31, which showed two naked teenage males engaged in sexual acts. None of the males in these two pictures were identified.
Lutter testified there were seven videos on the computer which had been downloaded from the computer, and had sexually suggestive file names. These videos showed different teenage boys engaged in masturbation in front of webcams. The actual videos were not shown to the jury or introduced into evidence.
After Lutter completed his direct examination testimony about the sexually explicit photographs, the court read the following instruction to the jury:
"[T]he People have presented evidence of the existence of certain photographs and videos. These photographs and videos are not charged in this case. You may, but you're not required to, consider this evidence for the limited purpose of deciding whether or not the defendant acted with the required sexual intent in this case. You may not consider this evidence for any other purpose. And at the conclusion of the case, I'll give you some further instructions on this matter when I instruct you on the law."Impeachment of C.S. and L.Y.
At trial, C.S. testified he never told defendant that he was 18 years old. However, C.S. admitted that he told the prosecutor's investigator, that he told defendant he was 18 years old, and defendant thought he was older than that, because C.S. has a goatee.
C.S.'s trial testimony about defendant's sexual conduct was extensively impeached with inconsistencies from his prior statements to investigators, as to whether C.S. performed certain sexual acts with defendant, whether B.S. was present when the acts occurred, and why C.S. continued to stay at defendant's house. C.S. admitted that even though he was interviewed by the police when defendant was arrested, he failed to disclose everything about defendant's sexual conduct toward him. C.S. admitted that while he stayed at defendant's house with B.S., C.S. and B.S. often stayed out late and slept all day. C.S. also admitted that defendant was not pleased with their behavior, he told B.S. to find a job, and he tried to find an apartment where C.S. and B.S. could live, but the boys refused to leave.
C.S. admitted that in August 2010, he was arrested for shoplifting a portable DVD player from Costco and for possession of marijuana for sale.
L.Y. admitted that after the third incident when defendant touched him, he again went to defendant's house, and asked him to buy something from his skateboard magazine. Defendant refused. L.Y. said he was not upset at defendant because of that incident.
DEFENSE EVIDENCE
Shelly Sweeton, the prosecution's investigator, testified that she interviewed C.S. prior to trial. C.S. said that when he first arrived at defendant's house, he told defendant he was 18 years old. Defendant did not believe C.S. and thought he was really 23 years old.
Detective Holquin testified that when he interviewed L.Y., the boy described three molestation incidents. L.Y. said defendant put his mouth on L.Y.'s penis during the second and third incidents. C.S. also described three molestation incidents. C.S. never said he performed oral sex on defendant.
Several friends and family members testified on defendant's behalf and stated he was an honest and sexually moral person, and he did not have a reputation in the community for being attracted to young boys. Defendant's sister had seen him interact with both L.Y. and her own nine-year-old son, and she never saw defendant engaged in any inappropriate behavior. Enrique Montes used to visit defendant's house because Montes's brother was living there with his young children. Montes never saw defendant engaged in any inappropriate behavior with the children. Defendant's testimony
Defendant testified that he lived with his father, his cousin, and another friend. Defendant served as caregiver for his elderly father, and his sister and her children were often at the house. Defendant had been a friend of Jennie and her four boys for a few years and occasionally hired the boys to perform chores and yard work.
Defendant testified that starting in 2008, he allowed L.Y. to use the laptop computer in his bedroom. He trusted L.Y., and left him alone when he used the computer. Defendant knew that L.Y. uploaded photographs of himself on his MySpace page. Defendant insisted he never took photographs of L.Y. or saved them on the computer.
Defendant testified he had never engaged in sexual acts with boys under the age of 18 years. He said he never took any sexually explicit photographs of Jennie's boys, never showed any sexually explicit photographs to L.Y. or his brothers, never told L.Y. that his brother was the boy who was engaged in oral copulation in one of the photographs, and never took photographs while engaged in sexual acts with the brothers or any other young boys.
Defendant testified he never touched L.Y.'s body, never tried to orally copulate L.Y., never tried to convince L.Y. to perform sexual acts on him, and never offered or gave cash to L.Y. in return for sexual acts. Defendant said he had a locking mailbox at his house, and it would have been impossible for L.Y. to retrieve anything from that mailbox without the key.
Defendant testified he met C.S. in July 2008 when B.S. brought him to defendant's house. C.S. said he had been living with his father but left home because he was being abused. B.S. and C.S. said they did not have anywhere to stay and wanted to live at defendant's house. Defendant first refused, but C.S. and B.S. just walked in with their belongings. They lived there for three days until defendant was arrested in this case.
Defendant testified that C.S. said he was 18 years old. Defendant thought C.S. was older - perhaps 22 or 23 years old. Defendant said he never asked C.S. to perform sexual acts with him, never offered C.S. money in return for sexual acts, never took sexually explicit photographs of C.S., and never engaged in any sexual acts with C.S. Defendant also denied taking the pictures of C.S. which were found on the computer.
Defendant testified that L.Y. came to his house on two occasions in July 2008 and asked for money to buy fireworks and something from a catalog. Defendant refused and L.Y. became angry at him.
Defendant said that L.Y., C.S., and B.S. had full access to his computer. Defendant claimed he never downloaded any videos or photographs of young boys engaged in sexual acts, did not know how sexually explicit photographs of young boys were on his computer or who put them there, did not take the photographs, did not recognize the young boys, and had never seen the photographs until they were introduced at his trial.
Defendant conceded that a CD found in his bedroom contained photographic exhibit Nos. 4-7, and the pictures showed him performing acts of oral copulation with another male. Defendant denied that B.S. was the other person, that he made that claim to L.Y., or that he showed the pictures to L.Y. Defendant explained the other person was "Shane," who was 25 or 26 years old and defendant's partner for several months. Defendant could not remember Shane's last name, address, or telephone number. Defendant explained that the photographs were a "one-time experience." Defendant's cross-examination testimony about the photographs
On cross-examination, defendant disputed L.Y.'s claim that photographic exhibit Nos. 27 and 28 depicted L.Y.'s naked backside or that it was taken in defendant's bedroom. Defendant agreed the same male was shown in both pictures, but claimed that person was not L.Y. because L.Y. had lighter-colored skin, the male was "hairy" and did not appear to be a young boy, and the picture was not taken in defendant's bedroom. Defendant had no idea why the photographs were on his computer.
The prosecutor asked defendant if he knew the identities of the naked teenage boys engaged in sexual acts, as shown in the downloaded pictures in photographic exhibit Nos. 29, 30, and 31. Defendant said he did not know them, and he had no idea how or why those pictures were on his computer.
Defendant admitted there were additional photographs on the CD which showed defendant engaged in oral sex with another male on a particular couch in defendant's house. Defendant insisted this person was Shane and not a teenage boy. Defendant also admitted that his cell phone had two pictures of defendant and Shane engaging in oral sex. Defendant was unfamiliar with photographic exhibit Nos. 66 and 67, which were on his computer and showed the face of a fully clothed teenage boy. Defendant said he did not know the boy or why the pictures were on his computer.
As a result of defendant's testimony, the court granted the prosecution motion's to introduce these additional photographs as rebuttal evidence. In rebuttal, Detective Holquin testified the CD, which contained exhibit Nos. 4-7, also contained additional photographs of defendant engaged in various sexual acts with another male, whose face was not visible. Mr. Lutter testified he found photographic exhibit Nos. 82 and 83 on the cell phone, and the pictures showed two males engaging in oral sex. He also found the two pictures of a fully clothed boy on defendant's computer.
DISCUSSION
I. The admissibility of Photographic Exhibit Nos. 4-7
As explained ante, the court granted the prosecution's motion to introduce four photographs, identified as exhibit Nos. 4-7, each of which showed defendant orally copulating a male whose face was not visible. At trial, L.Y. testified defendant showed these pictures to him just before he touched L.Y. in June 2008, defendant told him that B.S. was in one of the pictures, and L.Y. recognized B.S.'s plaid shorts.
On appeal, defendant argues the court abused its discretion when it admitted these four photographs because there was no proof of the other male's age or identity. Defendant argues these images were minimally probative of defendant's intent to commit the charged offenses, and were "inherently inflammatory and emotionally evocative."
We will review the court's evidentiary findings about these four photographs and conclude the court did not abuse its discretion when it admitted exhibit Nos. 4-7.
A. Exhibit Nos. 4-7
During the pretrial evidentiary hearing, the prosecutor stated photographic exhibit Nos. 4-7 were on the CD found in defendant's bedroom. Each picture showed defendant performing oral copulation on a male whose face was not visible. The prosecutor argued that each faceless male appeared to be a teenager, and the four photographs were relevant and probative of defendant's sexual intent as to the charged offenses of committing lewd acts and oral copulation on teenage boys. The prosecutor explained that L.Y. would testify that defendant showed these four photographs to him prior to the first charged offense, that defendant said L.Y.'s two older brothers, B.S. and B.Y., were in the pictures, and L.Y. recognized B.S.'s plaid shorts in the pictures.
The prosecutor argued defendant used the photographs to prepare and induce L.Y. to participate in charged sexual acts. The prosecutor clarified that the pictures were relevant and probative of defendant's sexual intent pursuant to Evidence Code section 1101, subdivision (b), and she was not introducing any of the pictures in this case as propensity evidence under section 1108.
All further statutory references are to the Evidence Code unless otherwise indicated.
The court was concerned about the possible prejudicial impact of too many photographs of sexual acts, and asked whether a witness could testify about the contents of these four pictures without showing them to the jury. The prosecutor replied that while the four photographs might be somewhat shocking, they were no more shocking than the charged sexual assaults committed against teenage boys. The four pictures were particularly probative because defendant showed them to L.Y. to introduce the sexual acts to him.
Defense counsel objected to the four pictures because there was no evidence the other male was a teenager. Defense counsel said he would introduce evidence that the four photographs showed him engaged in consensual acts with an adult male partner. The court asked counsel whether the pictures were probative because defendant showed the pictures to L.Y. Defense counsel argued the pictures were still too prejudicial, because they were the only four photographs found in defendant's house which showed defendant's face as he performed oral sex on another male. Defense counsel also argued that he would object if L.Y. testified that he spoke to B.S. about the pictures and whether B.S. told L.Y. that he engaged in the sexual acts shown in the pictures.
B. The court's initial ruling
At the pretrial hearing, the court held that photographic exhibit Nos. 4-7 were admissible because they were relevant and probative as to defendant's intent, they were "pretty closely intertwined with the facts that are alleged in this case" because L.Y. said defendant showed the pictures to him before the first touching incident, and the pictures were not too prejudicial.
The court also found a sufficient foundational basis for the four photographs because they were saved in a separate file, on a CD recovered from defendant's bedroom, and the evidence was "probative with respect to [defendant's] ownership of them and that the existence of them is probative with respect to the defendant's intent." The court acknowledged that the prosecutor was not introducing these pictures as propensity evidence under section 1108.
After L.Y.'s trial testimony about exhibit Nos. 4-7, the court conducted another hearing about the four pictures, and again found the photographs were admissible because they were "highly probative" and "integrally related with the offense itself in that they were used, in effect, as instrumentalities or inducements in the alleged offense" committed against L.Y. The photographs were "significantly more probative than prejudicial" as to defendant's intent pursuant to section 1101, subdivision (b). Thereafter, the four pictures were introduced into evidence.
C. The limiting instruction
During the course of trial, the court and the parties discussed whether the jury should receive instructions on the limited admissibility of the sexually explicit photographs. The court agreed with defense counsel's request to specifically instruct the jury about the limited admissibility of exhibit Nos. 4-7, particularly since the pictures showed defendant engaged in oral sex.
Immediately after L.Y.'s direct examination testimony about these pictures, the court gave the following limiting instruction to the jury which specifically addressed photographic exhibit Nos. 4, 5, 6, and 7:
"[Y]ou are instructed that you may not consider those photographs for the purpose of determining whether the defendant ... committed an unlawful sexual act with [B.S.] You may consider it for other purposes, and I will be giving you further instructions on the matter when I instruct you on the law at the conclusion of the case."
At the close of the trial, the court instructed the jury with a modified version of CALCRIM No. 375, as to all the photographs.
"The People presented evidence that the defendant possessed certain sexually explicit photographs not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. The fact is proof of the preponderance of the evidence, if you conclude it, is more likely than not that the fact is true. If the People have not met its burden, you must disregard this evidence entirely.
"If you decide the defendant committed the acts or possessed the photographs, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent of - of arousing, appealing to, or gratifying the lusts, passions, or sexual desires of himself or the child in this case.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offense. Do not consider this evidence for any other purpose except for the limited purpose of determining whether the defendant had the required intent. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
D. Photographs and evidence of prior acts
Defendant's contentions about exhibit Nos. 4-7 involve questions about the admissibility of photographs and evidence of prior acts. "The rules pertaining to the admissibility of photographic evidence are well settled." (People v. Scheid (1997) 16 Cal.4th 1, 13 (Scheid).) Photographs are admissible if they are relevant, and their probative value outweighs the probability that their admission would create a substantial danger of undue prejudice. (Id. at pp. 13-14; People v. Heard (2003) 31 Cal.4th 946, 972-973.) The court has broad discretion to determine the relevance, probative value, and possible prejudicial impact of photographs, and its decision will not be reversed absent an abuse of that discretion. (People v. Lewis (2009) 46 Cal.4th 1255, 1282.)
As a separate matter, "[i]n general, 'evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.' [Citation.] Such evidence is admissible, however, 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.' [Citation.]" (People v. Page (2008) 44 Cal.4th 1, 40 (Page); § 1101, subd. (b).)
"Such evidence of other uncharged crimes may be introduced once its proponent establishes, by a preponderance of evidence, both the fact of the prior offense and the defendant's connection to it. [Citations.] Under the Evidence Code, the truth of the prior uncharged act and defendant's connection to it are preliminary factual issues which must be decided before the prior misconduct can be deemed admissible; if the prior and defendant's connection to it are not established by a preponderance of the evidence, the prior is irrelevant to prove the ... section 1101(b) fact for which it is being offered. [Citations.]" (People v. Garelick (2008) 161 Cal.App.4th 1107, 1115 (Garelick).)
"In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402; Garelick, supra, 161 Cal.App.4th at p. 1115.) However, the least degree of similarity between the uncharged and charged acts is sufficient to prove intent because the recurrence of a similar result tends to negate accident, inadvertence, good faith, or other innocent mental state. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Even if evidence of the defendant's intent is admissible under section 1101, subdivision (b), the evidence must still be more probative than prejudicial under section 352. The court's determinations on these points are subject to review for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
E. Sexually explicit photographs
Photographic evidence of sexual images possessed by a defendant may be admissible to prove his intent to commit a sex offense. (Page, supra, 44 Cal.4th at p. 40; People v. Memro (1995) 11 Cal.4th 786, 865 (Memro).) Possession of child pornography is criminal (Pen. Code, § 311.11) and may constitute inadmissible character evidence. However, a defendant's possession of sexually explicit photographs of young boys may be probative of his intent to commit lewd acts upon them. (See, e.g., Memro, supra, 11 Cal.4th at pp. 864-865.)
"[T]he propriety or impropriety of admitting evidence of a defendant's pornography will vary from case to case depending upon the facts ...." (Page, supra, 44 Cal.4th at p. 41, fn. 17.) The court must "exercise caution in weighing the probative value of individual examples of pornography possessed or accessed by a defendant." (Ibid.)
To determine whether the court properly admitted the sexually explicit photographs, we must consider "(1) whether the photographs were relevant, and (2) whether the trial court abused its discretion in finding that the probative value of each photograph outweighed its prejudicial effect. [Citation.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 211-212.)
F. Analysis
In this case, the trial court did not abuse its discretion when it admitted photographic exhibits Nos. 4-7 because the four pictures were relevant and highly probative in this case for several reasons. First, a photograph may be relevant and probative to corroborate a witness's testimony as to the nature and circumstances of a crime. (Scheid, supra, 16 Cal.4th at pp. 15, 18-19.) The four photographs in exhibit Nos. 4-7 were relevant and probative to corroborate L.Y.'s description of defendant's conduct immediately before he committed the first charged offense of lewd and lascivious conduct in June 2008. (See, e.g., ibid.; People v. Reeves (1980) 105 Cal.App.3d 444, 451-452; People v. Gann (1968) 259 Cal.App.2d 706, 713.) Defendant prepared L.Y. for this incident by showing him the four pictures. Defendant told L.Y. that B.S. was the other male, and L.Y. recognized B.S.'s plaid shorts in one picture. Defendant then offered $10 to L.Y. "for everything he did," reached under L.Y.'s shorts, and held his private part.
Defendant argues the four photographs were not relevant or probative of his alleged sexual intent because the only disputed issue was whether the sexual acts occurred, and not whether the touchings were motivated by lewd intent. This argument is meritless. Defendant was charged with a total of six counts of committing lewd acts against minor boys. In order to prove these offenses, the People were required to prove defendant acted for the purpose of sexual arousal. (People v. Martinez (1995) 11 Cal.4th 434, 445.) Defendant's plea of not guilty put all elements of each offense at issue, and photographic evidence of his lewd intent and sexual interest in teenage boys was relevant and probative to prove the charged offenses. (Memro, supra, 11 Cal.4th at pp. 864-865; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 576; People v. Steele (2002) 27 Cal.4th 1230, 1243-1244; People v. Gann, supra, 259 Cal.App.2d at p. 713.) "Although not all were sexually explicit in the abstract, the photographs, presented in the context of defendant's possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction. [Citation.]" (Memro, supra, 11 Cal.4th at pp. 864-865.)
Defendant argues the four pictures were not probative because there was no evidence that they showed him engaged in sexual acts with a minor boy. Defendant asserts that while L.Y. said he recognized B.S.'s plaid shorts, and defendant told L.Y. that B.S. was in one of the pictures, the prosecutor never introduced evidence that B.S. was actually the other male in the pictures. This argument is contrary to defendant's objections during the evidentiary hearings. Prior to trial, defendant conceded that L.Y.'s testimony was admissible as to his recognition of B.S.'s shorts and what defendant told him about exhibit Nos. 4-7. However, defendant repeatedly objected to any evidence that L.Y. and B.S. discussed these four photographs, or whether B.S. told L.Y. that he was the person shown in the pictures, and the court acknowledged defendant's objections on these points.
Defendant argues the four photographs were cumulative, and it would have been less prejudicial for a law enforcement officer to describe some of the pictures instead of introducing them for the jury to review. This argument is also meritless. Similar contentions have been rejected even in situations involving gruesome photographs in murder cases. (See, e.g., People v. Booker (2011) 51 Cal.4th 141, 171.) In such cases, prosecutors are not obliged to prove their cases solely from live witnesses, and the jury is entitled to see such photographs if the court determines they are not unduly prejudicial. (People v. Gurule (2002) 28 Cal.4th 557, 624.)
The same principles apply as to the admissibility of sexually explicit photographs. (See, e.g., People v. Reeves, supra, 105 Cal.App.3d at pp. 451-452.) A court need not exclude photographs merely because they contain sexually explicit images that could have been the subject of testimonial description. (Scheid, supra, 16 Cal.4th at pp. 18-20.) "Although photographic evidence is often cumulative of testimonial evidence, that fact does not require its exclusion, '[b]ecause the photographic evidence could assist the jury in understanding and evaluating the testimony.' " (People v. Michaels (2002) 28 Cal.4th 486, 532.) The prosecution may rely on graphic photographs to present a persuasive and forceful case, and it is not required to sanitize the evidence as long as the pictures are more probative than prejudicial. (People v. Booker, supra, 51 Cal.4th at p. 171; see, e.g., Garelick, supra, 161 Cal.App.4th at p. 1116 [court properly admitted 118 of 131 sexually explicit images from defendant's computer as relevant and probative of defendant's intent to commit sex crimes against minors].)
Defendant argues the four photographs were highly inflammatory and amounted to inadmissible character evidence that significantly reduced the possibility the jury would acquit him of the charged offenses. To the extent the photographs might have elicited an emotional reaction in this case, however, the jury was already likely to have the same type of emotional reaction from the admissible testimony from C.S. and L.Y., as they graphically described defendant's solicitation and performance of sexual acts on them. (See, e.g., Scheid, supra, 11 Cal.4th at p. 19; People v. Ramirez (2006) 39 Cal.4th 398, 454; People v. Heard, supra, 31 Cal.4th at pp. 976-978.)
We further note that the trial court was clearly concerned about the explicit nature of the four photographs. It reviewed all of the photographs proffered by the prosecutor, carefully considered the probative value and possible prejudicial impact of each photograph, and, as we will explain in issue II, post, excluded several photographs and all of the videos as being unduly prejudicial. As to exhibit Nos. 4-7, the court gave the jury a specific limiting instruction about these four pictures immediately after L.Y.'s testimony. It also gave a more general instruction at the end of the trial as to all the graphic photographs admitted into evidence, to ensure the jury only considered the pictures for a proper purpose. Defendant has not challenged the correctness of these instructions. We presume the jury followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Finally, the jury's verdict in this case refutes defendant's claim that the jury was improperly influenced by the photographs. Defendant was charged with three counts of committing lewd acts against L.Y. (counts I, II, III); three separate counts of committing lewd acts against C.S. (counts IV, V, VI); and one count of oral copulation of C.S. (count VII), along with special allegations that defendant engaged in substantial sexual conduct with the victim, and multiple victims were involved. The jury found defendant guilty of three counts of committing lewd acts against L.Y., and one count of oral copulation of C.S. However, the jury found defendant not guilty of the three counts of committing lewd acts against C.S., and found the special allegations were not true. The jury's verdicts reflect that it carefully considered the evidence as to each count in this case and refute any possible inference that the jury was improperly influenced by the photographs.
II. Admission of additional photographic exhibits
We have already discussed the admissibility of photographic exhibit Nos. 4-7. Defendant also challenges the admission of several other sexually explicit photographs in this case. He argues the pictures had little probative value, the number of pictures were cumulative, and the evidence should have been excluded because the disputed issue was whether sexual touching occurred - not whether the touchings were committed with sexual intent. He further argues the other photographs were not probative because they did not show either defendant or the victims engaged in sexual acts, and they were highly prejudicial because they depicted unknown males of undetermined ages in various poses and sexual acts, and he was not charged with child pornography.
Defendant contends the court abused its discretion when it admitted the following photographic exhibits: Nos. 14-18; Nos. 27 and 28; No. 29; Nos. 30 and 31; Nos. 1, 2, and 3; Nos. 68, 69, 70, 71; and Nos. 75, 76, 77. We have already set forth the legal standards for the admissibility of such evidence in section I, ante. We will review each challenged photograph and discuss whether the evidence was properly admitted.
A. The evidentiary hearings
During the pretrial evidentiary hearings, the prosecutor explained that in addition to exhibit Nos. 4-7, there were numerous other sexually explicit pictures and videos on defendant's computer, cell phones, and the CD. The prosecutor wanted to introduce a total of about 25 photographs, and two of the six videos, as representative samples of the voluminous amount of sexually explicit images found in defendant's house. The prosecutor selected these photographs because they were probative of defendant's intent to commit the charged sex offenses against minor boys. The prosecutor stated that she specifically selected photographs at the "lower end" of what might be considered shocking, in order to present the jury with "a representative sample" of the sexually explicit images.
The prosecutor conceded that none of the additional photographs depicted defendant performing the charged offenses against L.Y. or C.S., although two photographs showed L.Y.'s naked backside. The prosecutor again clarified that she was not introducing the pictures as propensity evidence pursuant to section 1108.
The court carefully reviewed all the photographic evidence, admitted many of the pictures, and excluded several photographs and all the videos as unduly prejudicial. We now turn to defendant's specific assignments of error as to the exhibits the court admitted into evidence.
B. Photographs of C.S. and L.Y.
Defendant contends the court abused its discretion when it admitted photographic exhibit Nos. 14-18, which he describes as pictures of "males without shirts." As noted by respondent, however, these four exhibits are relatively innocuous photographs of C.S. which were found on defendant's computer. In exhibit Nos. 14, 15, and 17, C.S. posed while fully clothed and smiling for the camera. In exhibit No. 16, C.S. posed while raising his shirt to show a chest tattoo that said "Lorrie and James"; and in exhibit No. 18, C.S. posed without his shirt to again show the tattoo. The court also admitted similar photographs from defendant's computer which showed L.Y., fully clothed and smiling for the camera. None of these photographs showed either C.S. or L.Y. posing in sexually suggestive positions or engaged in any sexual acts, but all of the pictures had been saved on defendant's computer.
At the evidentiary hearing, the prosecutor argued these photographs were relevant and probative to show that defendant kept pictures of the two victims on his computer. Defense counsel did not object to these exhibits, and the court held they were admissible. 1. Analysis
As to defendant's claim of error, the court clearly did not abuse its discretion by admitting exhibit Nos. 14-18, the photographs of C.S., given the innocuous nature of the pictures and defendant's failure to object below.
C. Photographs of L.Y.'s body
Defendant contends the court abused its discretion when it admitted exhibit Nos. 27 and 28, which he describes as photographs of a young boy's buttocks. Exhibit No. 27 shows a male's naked buttocks, with his pants at his knees; exhibit No. 28 shows the same male's naked buttocks while he bends over. Both pictures were found on defendant's computer.
At the evidentiary hearing, the prosecutor argued the pictures were relevant and admissible because L.Y. would testify that he was the male in both pictures, and defendant directed him to remove his pants and pose for the pictures. Defense counsel objected to the evidence as too prejudicial.
The court held the pictures were admissible assuming L.Y.'s testimony established the proper foundation, because "photographs of the alleged victim in a sexually suggestive posture, at least partially nude, is probative" as to defendant's intent toward the minor.
1. Analysis
The court did not abuse its discretion by admitting these two pictures. They were relevant and probative of defendant's intent as to one of the victims of the charged offenses. The pictures also corroborated L.Y.'s trial testimony that defendant directed him to remove his clothes and pose for these photographs just before the second charged incident, which occurred around July 4, 2008.
D. Exhibit Nos. 1, 2, and 3
Defendant challenges the admissibility of exhibit Nos. 1, 2, and 3, which were pictures from the same CD which also contained exhibit Nos. 4-7 and numerous other sexually explicit pictures. Exhibit Nos. 1 and 2 showed a male's naked back while he was standing and posing for the camera. Exhibit No. 3 showed the same male's naked buttocks while he was standing. The male's face was not visible, and he was not engaged in any sexual acts.
At the evidentiary hearing, the prosecutor argued these three pictures were relevant because there would be evidence that the male was the victim's brother. Defense counsel objected and argued the pictures were not relevant without some foundation that the pictures showed one of the victims or his brother. The court held that the three photographs were relevant and probative of defendant's intent, and permitted the pictures into evidence.
1. Analysis
While the court admitted these three pictures based on the expected foundational testimony, neither L.Y. nor C.S. identified the male depicted in exhibit Nos. 1, 2, and 3, or said that defendant showed these pictures to them. Despite the foundational omission, the photographs were not unduly prejudicial considering the entirety of the record. The pictures did not show any sexual activity, the unknown male was not posed suggestively, and exhibit No. 3 merely showed a male's buttocks while he was standing.
Even if the court's initial rulings about exhibit Nos. 1, 2, and 3 were erroneous because of foundational problems, the entirety of the record indicates these three pictures would have been properly admitted during the rebuttal phase of the trial. As explained ante, during defendant's direct examination testimony, he insisted that he did not know about any of the sexually explicit photographs found in his house, except for the four pictures found on the CD, exhibit Nos. 4-7, which allegedly showed him engaged in sexual activities with "Shane." Defendant further claimed that L.Y., C.S., and B.S. had full access to his computer, leading to the inference that the boys had downloaded the other sexually explicit images. During cross-examination, defendant conceded that his prior testimony was not accurate, and that the same CD and his cell phone contained additional pictures of him engaged in oral sex with another man; he again claimed the other man was Shane.
After defendant's testimony, the court conducted another evidentiary hearing outside the jury's presence, to consider the prosecution's motion to introduce the additional photographs from the CD and cell phone - which defendant admitted showed him engaged in oral sex. The court admitted the photographs into evidence and held they were more probative than prejudicial because the pictures were found on two separate media (the CD and the cell phone), they rebutted his repeated claims that he did not know about the number of photographs found in his house, and they were again probative of his sexual intent. Thereafter, Detective Holquin and Mr. Lutter testified about the sexually explicit images found in photographic exhibit Nos. 78-83.
Defendant has not challenged the court's ruling on the rebuttal evidence, and we find the court did not abuse its discretion by admitting the pictures to impeach defendant's trial testimony. Thus, even if the court's initial decision about exhibit Nos. 1, 2, and 3 was erroneous without an adequate foundation, the entirety of the record indicates the court would have admitted those photographs to rebut defendant's claim that he only knew about the four sexually explicit pictures on the CD. Exhibit Nos. 1-3 were on the same CD as exhibit Nos. 78-83, all of which were admissible to refute defendant's claim that he didn't know about the graphic images.
E. One photograph of an unknown male
Defendant next challenges the admissibility of exhibit No. 29, which showed the full body of an unknown naked male. The male appears to be a teenager and he is lying on a bed in a sexually suggestive pose.
At the evidentiary hearing, the prosecutor explained that this photograph was one of three pictures of the same male found on defendant's computer; the second picture showed the same male's genitalia and legs, and the third picture was a close-up of the same male's genitalia.
The prosecutor argued it was obvious that the male was young based on his facial features and lack of body hair. She asserted the three photographs were probative of different aspects of defendant's lewd intent, since each picture focused on different parts of the naked teenage male's body and genitalia. The series itself was more probative of defendant's lewd intent than one single picture, e.g., because each picture focused on different aspects of the teenager's sexuality.
Defense counsel argued the pictures were prejudicial because the male was not a victim or a witness, the victims were not shown these photographs, the victims could not identify the male, and there was no evidence of the male's age. In the alternative, defense counsel argued the court should only admit one picture from the series since they were cumulative to the issue of defendant's intent.
The court decided to only admit the first photograph from the series, identified as exhibit No. 29, which showed the male's face and frontal naked body while posed on the bed. The court found exhibit No. 29 was admissible and probative of defendant's sexual intent. The court found the other two photographs were probative as to defendant's sexual intent, but decided the close-up images were too graphic and excluded the pictures. Instead, the court permitted a witness to testify that exhibit No. 29 was one of three pictures, and the other two pictures were close-ups of the same male's body.
The prosecutor argued that defendant was going to claim he was a homosexual interested in adult males, and the sexual acts with the victims never happened. The three downloaded pictures were probative because they showed defendant's sexual interest in teenage males, the boy in the picture was about the same age as the two victims, and "any touching that he would do with regard to [the victims] would be with a sexual intent." The prosecutor complained that the court had already excluded the majority of the sexually explicit photographs found on defendant's computer and asserted the two photographs were relevant to show defendant's sexual interest in multiple boys.
Defense counsel argued the three pictures should be excluded because they were extremely prejudicial, and the jury had already seen other sexually explicit photographs which were relevant as to defendant's intent.
The court stated it was attempting to "weave its way around" the pictures so the prosecution could introduce evidence about defendant's intent, without allowing the jury to see imagines "which will be exceptionally difficult for them to erase over an extended period."
The court thus permitted the prosecution to show exhibit No. 29 to the jury (previously marked as hearing exhibit Nos. 11A), and permitted a witness (Mr. Lutter) to describe the other two pictures (hearing exhibit Nos. 11B, 11C). The other two pictures were not shown to the jury, marked for trial, or introduced into evidence.
1. Analysis
Based on the entirety of the record, the court did not abuse its discretion when it admitted exhibit No. 29. The photograph is extremely relevant and probative of defendant's sexual interest in teenage males. The unidentified naked male in the photograph appears to be about the same age as L.Y., and he is posed very suggestively on a bed. While there is no evidence that defendant took the photograph or knew the male, the existence of the picture on his computer was probative of his sexual intent pursuant to section 1101, subdivision (b).
The court was well aware of the inherently inflammatory nature of these pictures, and properly exercised its discretion to exclude the two close-up photographs of the male's genitalia. In doing so, the court did not abuse its discretion to permit Mr. Lutter to testify about the existence of the two close-up photographs as probative of defendant's sexual intent toward teenage males.
H. Two photographs of males engaged in sexual acts
Defendant argues the court abused its discretion by permitting the introduction of exhibit Nos. 30 and 31, pictures which were downloaded onto defendant's computer. Exhibit No. 30 (hearing exhibit No. 12A) showed a naked teenage male orally copulating another male of undetermined age; and exhibit No. 31 (hearing exhibit No. 12B) showed two naked males, who appear to be teenagers, engaged in sodomy.
At the evidentiary hearing, the prosecutor argued the two pictures were highly relevant because they showed sexual activity between young boys in the same age range as the two victims. In addition, these two pictures were just a representative sample of similar sexually explicit images downloaded onto defendant's computer.
Defense counsel argued the photographs were irrelevant and prejudicial because the males were not identified, and there was no evidence defendant showed the pictures to the victims, the victims were in the pictures, or that defendant was accused of committing acts of sodomy.
The court found these two pictures were very probative as to defendant's sexual intent and interest in minor boys. The court asked the prosecutor how many pictures were needed to demonstrate that intent, and whether an investigator could describe the pictures instead of introducing them into evidence. The court queried whether defendant's intent would be "crystal clear" for the jury at some point, and if additional photographs would simply be prejudicial "past that point."
The prosecutor cited a series of cases which held that it was not prejudicial to introduce 100 out of nearly 1,000 sexually explicit photographs to prove a defendant's lewd or sexual intent. The prosecutor further argued that unless the jury saw a representative sample of the pictures defendant had downloaded and saved on the computer, from a variety of sources, it might have the false sense that the incidents were accidents or that defendant was not interested in teenage males.
The court decided to admit the two photographs.
"[I]t does seem to the Court that there is a significant issue with respect to the defendant's intent with respect to young boys and that's a significant portion of the case. And the Court does find that the probative value of those photographs and the defendant's alleged interest in those photographs outweighs the prejudicial impact with respect to them."
1. Analysis
We find the court did not abuse its discretion when it admitted exhibit Nos. 30 and 31. As with the other photographic exhibits in this case, the court was acutely aware of the potential prejudicial impact of showing these explicit images to the jury. However, the pictures were relevant and probative for several reasons. As explained ante, defendant disavowed any knowledge of the sexually explicit pictures, except for exhibit Nos. 4-7, which allegedly showed defendant and "Shane." He claimed that L.Y., B.S., and C.S. had full access to his computer. As the court noted, these images were extremely graphic, but the volume of pictures on defendant's computer was probative of his sexual interest in teenager males and refuted "the diminishing likelihood that the images' presence on his computer was inadvertent. [Citation.]" (Garelick, supra, 161 Cal.App.4th at p. 1116.)
I. Exhibit Nos. 68-71, 75-77
Defendant next challenges exhibit Nos. 68, 69, 70, 71, 75, 76, and 77, and argues that these photographs of male genitalia were highly inflammatory and cumulative. As noted by respondent, however, these pictures were never introduced into evidence. Toward the end of the trial, outside the jury's presence and off the record, the court allowed the prosecutor to mark for identification additional sexually explicit pictures for identification purposes only. These pictures had apparently been found on defendant's computer and cell phone. The entirety of the record demonstrates that the court did not permit the prosecution to introduce these pictures into evidence, and the jury did not see or hear about the existence of these pictures.
We note that defendant has not challenged the admission of the sexually explicit photographs introduced during rebuttal. (Exhibit Nos. 78-83)
J. Conclusion
The court did not abuse its discretion when it admitted the sexually explicit pictures in this case. They were highly probative of the elements of the charged crimes, corroborated the victim's testimony, and did not unduly consume time. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 185-186; People v. Cain (1995) 10 Cal.4th 1, 29.)
In addition, the images were not cumulative and were limited in number. The court admitted a total of 13 photographs which showed male genitalia and/or sexually suggestive poses; defendant admitted he was one of the males shown in 10 of the photographs and claimed the other male was his adult partner (exhibit Nos. 4-7, 78-83); whereas L.Y. said defendant showed him four of those pictures and said that the other male was L.Y.'s brother (exhibit Nos. 4-7). The other three pictures of male genitalia (exhibit Nos. 29-31) were highly probative of defendant's sexual intent since the images had been downloaded and saved on his computer, and showed unknown young males, who appeared to be around the same ages as L.Y. and C.S., in graphic poses. There were five separate photographs which showed the naked backsides of males; two of those five pictures showed L.Y.'s naked backside. The court excluded other sexually explicit images proffered by the prosecution, including the six videos downloaded to defendant's computer which depicted unknown boys engaged in sexual acts. (Exhibit Nos. 68-71, 75-77)
Given the limited number of sexually explicit pictures admitted in this case, we cannot say that the photographs were so inflammatory that defendant's due process rights were violated. (See, e.g., Garelick, supra, 161 Cal.App.4th at p. 1116 [court properly admitted 118 of 131 sexually explicit images from defendant's computer as relevant and probative of defendant's intent to commit sex crimes against minors].) While some of the images may have been disturbing, "we cannot say that the [photographs were] substantially more prejudicial than probative, for [their] value in establishing defendant's intent" to commit the charged offenses was substantial. (Memro, supra, 11 Cal.4th at p. 865.)
III. Substantial evidence of count VII
In count VII, defendant was charged with and convicted of oral copulation on a person under the age of 18 years, C.S. (Pen. Code, § 288a, subd. (b)(1)). On appeal, defendant contends this conviction must be reversed because there was evidence that defendant reasonably believed C.S. was over 18 years old.
A. Penal Code section 288a, subdivision (b)(1)
Penal Code section 288a, subdivision (b)(1) states in relevant part: "[A]ny person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year."
A defendant charged with violating this statute may raise the defense that he reasonably and in good faith believed the victim was over 18 years of age, and may request an instruction that this is a valid defense. (Pen. Code, § 26; see People v. Peterson (1981) 126 Cal.App.3d 396, 397; People v. Scott (2000) 83 Cal.App.4th 784, 798-800.) The good faith mistake of fact defense implicates the defendant's intent in a situation if there had been no mistake: if the facts had been as defendant believed them to be - that the victim was 18 years of age or older - then his conduct would not have been criminal. (People v. Scott, supra, 83 Cal.App.4th at p. 800.) If defendant's mistaken view of the facts had been correct, " 'it would have precluded a finding of criminal intent or evil design and the defendant's conduct by itself would have been entirely innocent.' [Citation.]" (People v. Williams (1991) 233 Cal.App.3d 407, 411; People v. Magpuso (1994) 23 Cal.App.4th 112, 116.)
Such a defense is not available when a defendant is charged with lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (a)). (People v. Magpuso, supra, 23 Cal.App.4th at p. 116.) In addition, a defendant's alleged mistake about the age of a 14 or 15 year old victim is not a defense to a charge under Penal Code section 288, subdivision (c)(1). (People v. Paz (2000) 80 Cal.App.4th 293, 294.)
B. Testimony and instructions
As set forth ante, there was no dispute that C.S. was 15 years old when he arrived at defendant's house - and that he turned 16 years old in the few days between his arrival and defendant's arrest - during which defendant committed the charged act of oral copulation against him. However, there was conflicting trial testimony as to what C.S. told defendant about his age. C.S. testified he never told defendant that he was 18 years old. However, C.S. admitted that during a pretrial interview with the prosecution's investigator, he said that he told defendant he was 18 years old, and defendant thought he was older than that because C.S. has a goatee.
Shelly Sweeton, the prosecution's investigator, testified for the defense that she interviewed C.S. prior to trial. C.S. said that when he first arrived at defendant's house, he told defendant he was 18 years old. C.S. also said that defendant did not believe C.S.'s claim to be 18 years old, because defendant thought he was really 23 years old. During his trial testimony, defendant testified that C.S. said he was 18 years old. Defendant thought C.S. was older, perhaps 22 or 23 years old.
Based on the conflicting testimony about C.S.'s statements, the court instructed the jury with CALCRIM No. 1082, as to the elements of count VII, oral copulation of another person under the age of 18 years, and this possible defense:
"The defendant is not guilty of this crime if he reasonably and actually believed that the other person was ... age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime."
C. Substantial evidence
Defendant contends his conviction in count VII must be reversed for insufficient evidence, because there was trial testimony that C.S. told defendant that he was over the age of 18 years. Defendant contends that while C.S. testified he never made that statement to defendant, the veracity of C.S.'s trial testimony was "inherently improbable" given his conflicting statements about other aspects of his encounters with defendant and the impeachment of his trial testimony with his juvenile offenses.
In considering defendant's substantial evidence claim, however, we are guided by well-settled principles on appeal. "[W]e review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.] Moreover, because it is the jury, not the reviewing court, that must be convinced of the defendant's guilt beyond a reasonable doubt, we are bound to sustain a conviction that is supported by only circumstantial evidence, even if that evidence is also reasonably susceptible of an interpretation that suggests innocence. [Citation.]" (People v. Little (2004) 115 Cal.App.4th 766, 771.)
"Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)
In this case, the jury was obviously aware of the inconsistencies between C.S.'s pretrial statements and his trial testimony, and defendant's testimony about C.S.'s alleged statements about his age. Indeed, the jury obviously discounted aspects of C.S.'s testimony, given the not guilty findings as to the three counts of lewd conduct (counts IV-VI). However, the jury was correctly instructed about the defense of reasonable and good faith mistake of fact as to the victim's age, and it resolved the issue against defendant. The jury's implied finding is supported by C.S.'s trial testimony, that he never told defendant that he was older than 18 years of age.
A defendant who challenges the sufficiency of the evidence to support his conviction " ' "bears a heavy burden ...." ' [Citation.]" (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.) We will not reverse unless it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Bolin, supra, 18 Cal.4th at p. 331.) There was conflicting evidence before the jury as to defendant's reasonable and good faith belief about C.S.'s age, and C.S.'s credibility issues did not render his testimony inherently improbable on this point.
IV. Prosecutorial misconduct
Defendant asserts the prosecutor committed prejudicial misconduct during closing argument by impermissibly vouching for the credibility of the victims in this case, thus violated his right to a fair trial.
A. Background
During closing argument, defense counsel attacked the credibility of L.Y. and C.S., pointed out alleged inconsistencies in their stories, and argued they fabricated the sexual assault allegations. The defense counsel concluded his closing argument by asserting that he was not "going to stand here and tell you that I know exactly why [L.Y.] has said what he has said or exactly why [C.S.] has come in here and testified the way he has," but that the prosecution had the burden of proof.
Thereafter, the prosecutor began her rebuttal as follows:
"I'll tell you why [L.Y.] and [C.S.] came into this courtroom, raised their right hand, and swore to tell the truth and told you that [defendant] molested them. Because that is the truth."
Defense counsel immediately objected and the court immediately admonished the jury:
"Ladies and gentlemen, you are the determiners of who is telling the truth and who is not in the case. Neither the District Attorney nor the defense attorneys may do that."
The prosecutor continued her rebuttal argument by asserting that neither L.Y. nor C.S. had a motive to lie about defendant, and she summarized the evidence which corroborated their accounts of the nature and circumstances of the sexual assaults, including L.Y.'s knowledge and recognition of certain photographs.
B. Analysis
Defendant argues that the prosecutor's rebuttal argument constituted prosecutorial misconduct because she vouched for the victims' credibility. "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
"A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record. [Citations.]" (People v. Martinez (2010) 47 Cal.4th 911, 958.)
To the extent that the prosecutor's opening statement on rebuttal may have been inappropriate, the court immediately and correctly admonished the jury. The prosecutor continued her rebuttal argument by appropriately discussing the admissible evidence which corroborated the victims' trial testimony. We presume the jury followed the court's immediate admonishment which cured any possible misconduct. (People v. Sanchez, supra, 26 Cal.4th 834, 852.) Moreover, the jury's not guilty verdicts as to three counts, based on C.S.'s testimony, indicated that it did not blindly follow the prosecutor's brief rebuttal assertion.
DISPOSITION
The judgment is affirmed.
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Poochigian, J.
WE CONCUR:
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Kane, Acting P.J.
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Detjen, J.