Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, No. FV1025891, J. David Mazurek, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Daniel Rogers and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Donald W. Jordan for Defendant and Appellant.
ARONSON, J.
A jury convicted 86-year-old Ernest Edward Hansen of possession of child pornography. (Pen. Code, § 311.11, subd. (a); all further statutory references are to the Penal Code unless otherwise specified.) After defendant admitted six prior strikes for lewd acts or oral copulation upon children under 14 years of age (§§ 288, subd. (a); 288a, subd. (a)), the trial court sentenced him to a 25-years-to-life term under the Three Strikes law (§§ 667, subd. (e)(2); 1170.12, subd. (c)(2)). Defendant contends the trial court erred under Evidence Code section 352 by admitting testimony from two victims describing how defendant molested them as children decades earlier. He also argues his trial attorney rendered ineffective assistance of counsel by failing to object to testimony from Dr. Bruce Yanofsky that defendant disclosed he remained sexually attracted to young boys after his release from civil commitment under the Sexually Violent Predators Act (SVPA, see Welf. & Inst. Code, § 6600 et seq.). Defendant asserts his trial attorney should have objected to Yanofsky’s testimony because Yanofsky, who interviewed defendant pursuant to the SVPA, provided no warnings under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) before speaking with him and because the interview allegedly violated his right to counsel under Massiah v. United States (1964) 377 U.S. 201 (Massiah). Finally, defendant contends the trial court abused its discretion by allowing the jury to view a portion of the videotape defendant was charged with possessing. As we explain below, none of these contentions has merit, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Following his convictions in 1981 and 1994 for sex offenses against minors, defendant spent much of the next 25 years in prison. When his prison term for his 1994 conviction ended, the state civilly committed him as a sexually violent predator (SVP). During his commitment, defendant volunteered and paid for his own orchiectomy, in which his testicles were surgically removed. Defendant reported to evaluators in the SVP program that, following a period of recovery after the operation, “‘he no longer experienced any sort of sexual thought’” and “‘claim[ed] he has never had such inclinations since six months after the operation.’” Defendant subsequently petitioned for and obtained his conditional release in 2006 from civil detention, subject to continuing supervision, satellite monitoring, and other conditions.
Defendant owns a large ranch in El Mirage; the property includes an airplane hangar and a runway. On August 31, 2006, the day before defendant’s release, police officers searched his ranch to locate and remove any pornographic material. They discovered a large number of pictures and magazines depicting nude prepubescent boys performing sexual acts. To encourage defendant’s cooperation in sweeping the property of illicit material, the authorities notified him he would not be charged with possession of the items they found or additional items he disclosed. The officers did not search a part of the airplane hangar known as the “key making room” (key room) because, as one officer noted, it was “filthy,” so cluttered with “miscellaneous junk” as to be inaccessible, and “[i]t was obvious nobody had been in there for a number of years.”
Defendant, an engineer, apparently participated in developing the U2 spy plane and contributed to other military aviation endeavors.
At defendant’s request, his attorney alerted the police the next day that “inappropriate sexually explicit material” could be found in a storage room in the airplane hangar. The police located a VHS video cassette containing child pornography in the storage room. Handwritten on a piece of white tape on the cassette were the words, “Rudy’s copy.” The police removed the cassette, and defendant returned to his property that day, September 1, 2006.
A condition of defendant’s return barred his access to the airplane hangar, which made him “very angry,” according to Kym Caudle, who supervised defendant during his release. Defendant wanted to enter the hangar alone. He became “enraged” at the no-hangar provision and sought to overturn it at a court hearing. The trial court denied his request and ordered him to stay out of the hangar.
Learning defendant had entered the hangar despite the court order and his release condition, and concerned about defendant’s interest in accessing the hangar by himself, Caudle searched the building with the aid of police officers on November 30, 2006. Sergeant Anthony Fiedler, who had been present during the earlier search of the property in August, noticed the key room was “all cleaned up” and showed signs of use. Searching the room, Fiedler found a manila envelope and two Beta Max video cassettes hidden behind a ceiling panel. Despite the “thick” dust in the ceiling area, the manila envelope and video cassettes were dust-free, indeed “completely clean.”
The manila envelope contained magazines and photographs depicting young males engaged in homosexual activity. Printed in handwriting on a note attached to one of the cassettes was the word “Rudy’s.” That cassette contained video images of prepubescent children engaging in sex acts. The other cassette similarly included scenes of sex acts between young males but, according to the officer who viewed both tapes, the latter “seemed... more of a professional-made tape” and included “a disclaimer in the beginning saying ‘All models depicted were over 18.’” The police arrested defendant.
Defendant admitted in an interview with police that he had been in the room where the tapes were found, and he stated no one else used the room. Defendant at first denied knowing whether either tape would depict child pornography. Then he changed his story, stating “there probably was” child pornography on the cassette “with Rudy’s name on it because that’s the way he was.” Defendant complied with the officer’s request to write the word, “Runny’s” on a piece of paper; his handwriting matched that on the tape labeled “Rudy’s.” Defendant admitted the “Rudy’s” handwriting was his. Investigators discovered defendant’s fingerprints on some of the photographs found in the manila envelope.
A detective testified at trial that the contents of the Beta Max cassette containing child pornography were the same as the contents of the VHS cassette seized on September 1. Defendant offered to stipulate that the tapes depicted child pornography. Over defendant’s objection, the trial court allowed the prosecutor to play the first 35 minutes of the 2-hour-long tape before a noon recess. After the recess, perhaps prompted by a note from a juror, the trial court notified the jury the parties had “agreed with the court that we don’t need to resume playing [the tape] at this point,” but the tape would be in evidence for further viewing if requested by the jury.
The record does not include any juror note at this stage of the trial, but the trial court observed after the noon recess “there was a note that was given to the court earlier and... the proper way to do things if you want to communicate with the court [is to] give a note to the bailiff....” The court did not describe the contents of the note it received.
Yanofsky, a psychologist retained by the Department of Mental Health to conduct SVP evaluations, testified concerning his interview with defendant in January 2007. According to Yanofsky, he discussed with defendant the possibility of reintroducing “sex offenders specific treatment,” which defendant opined “would not be a very good idea because he ha[d] had the experience of being in this type of group with other offenders after the orchiectomy, listening to information or [recalling] some of his own... offen[ses] and finding himself aroused and stimulated again by just talking about or hearing others talk about it.” Addressing orchiectomy, Yanofsky testified that research showed most individuals who undergo the surgery, “remain sexually inclined” and, while “[t]hey may not act on it or have the physical capabilities in some cases to do it,... the mental process of thinking, fantasizing about sex acts is still there.”
Defendant disclosed to Yanofsky that his attraction to boys began at age six, he had his first sexual experiences with boys at age 12 or 13 and had sex with 10 to 15 underage boys over the course of his life. Defendant admitted he never was interested in adult men, he preferred fondling boys’ genitalia and oral copulation, and he rarely engaged in sexual intercourse with his former wife or other women in his life. Defendant admitted grooming young boys with pornography and using his financial resources, including giving flying lessons and other luxuries, to induce them to have sex with him. According to Yanofsky, defendant “was almost bragging about his ability to know specifically who to target. He had this knack for choosing the boys.” Defendant described himself to be in “excellent” health and Yanofsky observed that, while he used a walker, defendant appeared “robust,” “perfectly alert and oriented,” and “clear, very appropriate” in his responses. Yanofsky noted some “some limitations” in defendant’s short-term memory, “appropriate to [his] age,” but no problems with respect to his long-term memory.
Over defendant’s objection, witnesses identified as Donald and Alan testified to various sexual offenses defendant committed against them between 1968 and 1972 and between 1971 and 1981, respectively. Alan, defendant’s second cousin, had been one of the victims in the 1981 case against defendant, though he was not called as a witness then. He testified defendant began conditioning him for sexual activity when he first visited defendant’s ranch at age eight. Defendant showed him magazines like Playboy, explained that most people are bisexual, and counseled that such conduct was normal. He showed Alan photographs of children performing homosexual acts, which he also described as normal. Defendant always had the latest technology, and he showed Alan and other boys eight-millimeter, Beta Max, and VHS tapes of such acts. Defendant first molested Alan at age eight, orally copulating him. Defendant abused Alan until he turned 18, taking pictures of Alan having sex with defendant and other boys, and videotaping Alan and other boys having sex with each other. Defendant used Beta Max and VHS tapes for his video recordings, and he would sometimes make copies of the tapes.
Donald also testified concerning defendant’s past acts of abuse. Defendant met Donald through Donald’s father, a general contractor who worked on defendant’s house. Defendant, who sometimes gave Donald rides in his airplane, initiated sexual contact with Donald by occasionally brushing against Donald’s groin during flights. When Donald was 12 years old, defendant began showing him photographs of young boys performing sex acts. Defendant told Donald boys first had sex with older men and then progressed to having sex with women. Defendant’s fondling of Donald’s genitalia eventually led to oral copulation, during which defendant inserted his fingers into Donald’s anus and, on one occasion, his penis, causing Donald to bleed. Donald protested and defendant stopped. Defendant sometimes took Polaroid photographs of Donald performing sex acts. The abuse occurred on several occasions when Donald was between 13 and 16 years old.
Several defense witnesses testified defendant had memory problems, seemed forgetful, was frail, and the witnesses doubted he could climb a ladder. One witness declared defendant “could not even step on a book.” The attorney who filed defendant’s petition for conditional release in 2006 testified that in the 40 to 50 hours he spent with defendant at that time, defendant stated he had no thoughts of sex. Defendant’s housekeeper testified he had no young male visitors on the property during his release.
II
DISCUSSION
A. Past Acts of Molestation Admitted under Evidence Code Section 1108
Defendant argues the trial court erred in admitting Donald’s and Alan’s child molestation testimony as more probative than prejudicial, over defendant’s objection. Evidence Code section 1108, subdivision (a), provides that in a prosecution for certain enumerated sexual offenses, including possession of child pornography (id., subd. (d)(1)(A)), “evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352.” Under Evidence Code section 352, the trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
We review a trial court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282.) Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Guerra (2006) 37 Cal.4th 1067, 1114.) As we explain, the trial court did not err in admitting Donald’s or Alan’s testimony. And even assuming arguendo there was error, the overwhelming evidence of defendant’s possession of the tape rendered any error in admitting the prior acts harmless.
All relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d) (Proposition 8).) Relevant evidence is defined in Evidence Code section 210 as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The test of relevance is whether the evidence tends “‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177 (italics added), overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
Defendant challenges the admission of Donald’s and Alan’s testimony on grounds the sex acts they described were far different and, according to defendant, too dissimilar from the prohibited conduct underlying the present charge, i.e., possessing a video cassette depicting pornographic material. Defendant observes that possessing an item and assaulting a person are acts that are different in kind, not merely degree. He relies on People v. Harris (1998) 60 Cal.App.4th 727, but his reliance is misplaced. In Harris, the defendant was charged with using a position of trust as a mental health nurse to engage in sex with two women who were “vulnerable due to their mental condition.” (Id. at p. 730.) The prior offense involved a brutal rape, in which Harris beat his victim and stabbed her. (Id. at p. 733.) In finding that the prior offense was improperly admitted at trial, the Harris court noted the striking dissimilarities between the 23-year-old prior offense and the charged offenses and concluded that the prior offense had no “significant probative value” on any disputed issue. (Id. at pp. 740-741.)
Here, given the nature of the acts depicted on the video tape, the trial court could reasonably conclude defendant’s prior conduct was relevant to prove his motive to possess a tape depicting the same kind of conduct. The past acts, as described by Donald and Alan, demonstrated defendant’s intense interest in sexual and homosexual acts involving prepubescent boys, including oral copulation, thus tending to show a motive for his possession of a videotape depicting such acts. (See Evid. Code, § 1101, subd. (b) [evidence of motive admissible despite general bar on character evidence].) And while the degree of similarity between past and present acts must be “‘so unusual and distinctive as to be like a signature’” to establish identity (People v. Ewoldt (1994) 7 Cal.4th 380, 403), “[t]he least degree of similarity (between the uncharged act and the charged offense) is required” to prove the defendant’s mental state, such as his intent (id. at p. 402). Consequently, we conclude the nature of the past acts was sufficiently similar to the nature of the acts depicted on the videotape to prove defendant’s mental state included a motive — his intense interest in the acts engaged in and depicted — to possess the tape.
Notably, there was also a direct parallel between the past acts defendant engaged in and the present pornography possession charge given defendant’s habit of filming his underage subjects, which showed his interest in and propensity to possess videotaped child pornography, thereby increasing the likelihood he possessed the tape in issue, despite his attempt to cast suspicion on “Rudy.” As defendant concedes, the purpose of Evidence Code section 1108 is to permit the admission of propensity evidence in sex offense cases. (See People v. Soto (1998) 64 Cal.App.4th 966, 991 [highly probative prior conduct evidence was “exactly the type of evidence contemplated by the enactment of section 1108”].) Defendant protests that the “disgusting acts which were admitted” must have prejudiced the jury against him, outweighing any probative value, but the probity of those acts lay in their very nature, so the jury could better judge his interest in, and the likelihood he possessed, the tape. Thus, while admission of Donald’s and Alan’s testimony may have damaged defendant, the requisite prejudice under Evidence Code section 352 is “not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638 (Karis).)
Defendant also argues the acts Donald and Alan described were too remote to be admitted without prejudicing the fairness of his trial. Remoteness, however, diminishes as a concern where the defendant has been incarcerated much of the intervening time or commits other felony offenses during periods of freedom. (People v. Carpenter (1999) 21 Cal.4th 1016, 1056.) In such cases, as here, the prior acts retain probity because the defendant has failed to demonstrate he is a changed person. (See People v. Steele (2002) 27 Cal.4th 1230, 1245 [prior killing 17 years earlier not too remote to admit, as substantial intervening incarceration prevented showing of reform].)
According to defendant, “the fact that appellant was eighty-five years of age, had been castrated since his prior offenses, and had been subject to sexually violent predator treatment[] should have further compelled the trial court to exclude the propensity evidence... on the ground that these factors, as well as time, made the prior offenses remote.” But the trial court could reasonably conclude these factors undercut the remoteness of the prior acts, making them more rather than less probative. Specifically, defendant’s admitted to Yanofsky his continuing interest in sexual acts involving prepubescent boys despite his age, mental health treatment or castration. Consequently, the prior acts were relevant and probative to show the deep-seated and long-standing nature of defendant’s interest in particular acts, and thus his intense motive for and increased likelihood of possessing a tape depicting these acts. In sum, the trial court did not abuse its discretion by admitting Donald’s or Alan’s testimony.
Even assuming arguendo Evidence Code section 352’s probity-prejudice scale tipped against admission of Donald’s and Alan’s prior acts testimony, any error in admitting the testimony was harmless. We need not resolve whether the state law standard for asserted evidentiary error applies (People v. Watson (1956) 46 Cal.2d 818) or, as defendant contends, the federal standard under Chapman v. California (1967) 386 U.S. 18. Simply put, even under the latter, we discern no possibility defendant would have obtained a more favorable result had the trial court excluded the prior acts testimony.
The evidence connecting defendant to the tape was overwhelming. Defendant insisted on unsupervised access to the airplane hangar, specifically to the key room where investigators found the child pornography. Although the ceiling area in the room was “thick” with dust, the hidden package containing the videotape was “completely clean,” indicating someone recently placed the package in the room. Defendant admitted he was the only person who used the room. Investigators found his fingerprints on pornographic photographs inside the same hidden package that contained the videotape. His handwriting was on the tape. He admitted the tape “probably” contained child pornography. Defendant attempted to cast suspicion on “Rudy” by writing his name on the tape and by stating it “probably” contained child pornography because of Rudy’s interest in such materials. But given that defendant had just turned over to authorities a tape containing identical content three months earlier, the evidence strongly suggested he copied the tape to view later. It was unlikely he did so merely as a favor to a third party such as “Rudy,” if he existed, given that defendant knew the dire consequences of possessing such a tape included forfeiting his freedom.
In any event, third party ownership of the tape would not exonerate defendant since section 311.11 bars not just “possession” of, but also “control” over, pornographic material depicting children. In admitting he wrote “Rudy” on the tape, and in placing or permitting it to be placed in a room he admitted only he used, defendant essentially admitted he had physical control over the tape. Finally, the conclusion defendant knew the tape he held contained banned pornography is inescapable given the fact he had turned over an identical tape to authorities because of its pornographic content. In light of the overwhelming evidence of defendant’s control over the tape, even if only to hold it for “Rudy,” any error in admitting the prior acts evidence was harmless beyond a reasonable doubt.
B. Miranda and Massiah Issues Raised for First Time on Appeal
Defendant contends his trial attorney rendered ineffective assistance of counsel by failing to object to the admission of Yanofsky’s testimony concerning his pretrial SVP evaluation of defendant for the Department of Mental Health. Specifically, defendant asserts his trial attorney erred in failing to object that Yanofsky’s presumed failure to provide Miranda warnings before the interview violated his Fifth Amendment right to remain silent. (Miranda, supra,384 U.S. 436.) He also argues trial counsel should have objected on grounds the interview, conducted without his attorney’s knowledge or presence, violated his Sixth Amendment right to counsel under Massiah. Because, as we explain, neither of these contentions has merit, defendant’s ineffective assistance of counsel claim fails. Simply put, defense counsel is not required to make futile objections or advance meritless arguments. (People v. Cudjo (1993) 6 Cal.4th 585, 616; People v. Thomas (1992) 2 Cal.4th 489, 531; see Strickland v. Washington (1984) 466 U.S. 668, 688 [counsel’s performance must fall below an objective level of reasonableness and prejudice defendant].)
1. Miranda
The Fifth Amendment privilege against self-incrimination encompasses two distinct rights: the right not to testify in a criminal matter and the right to decline to inculpate oneself in criminal activity by answering questions. (Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549, 555.) While the right to refuse to testify has no application in civil proceedings (ibid.), including SVP proceedings (Allen v. Illinois (1986) 478 U.S. 364, 374-375 (Allen); People v. Leonard (2000) 78 Cal.App.4th 776, 791-792 (Leonard)), the right to avoid self-incrimination in a crime applies “in any proceeding, civil or criminal....” (Cramer v. Tyars (1979) 23 Cal.3d 131, 137, original italics). Miranda warnings safeguard the right against self-incrimination by “compensat[ing] for the coercive pressures inherent in a custodial interview” with police officers. (People v. Pilster 138 Cal.App.4th 1395, 1405 (Pilster).)
Defendant’s Miranda claim fails because nothing in the record suggests his interview with Yanofsky amounted to a custodial interrogation, much less one instigated by law enforcement or designed to elicit evidence incriminating defendant in the charged crime. Miranda applies only to custodial interrogations, i.e., to “questioning initiated by law enforcement officers after a person has been taken into custody....” (Miranda, supra, 384 U.S. at p. 444.) It is not enough that a person may feel he is not free to leave; rather, his freedom of action must be restrained to a “‘degree associated with formal arrest,’” such that he is “completely at the mercy of the police.” (Berkemer v. McCarty (1984) 468 U.S. 420, 438, 440.) The reviewing court independently determines whether an interrogation was custodial within the meaning of Miranda. (People v. Ochoa (1998) 19 Cal.4th 353, 402.) The meaning of “interrogation” under Miranda is similarly an issue of law. (Rhode Island v. Innis (1980) 446 U.S. 291, 297 (Innis).)
Here, defendant points to nothing in the manner Yanofsky conducted the interview to suggest Miranda applies. He provides no facts about the location of the interview; whether he was handcuffed; whether his freedom of movement was curtailed; whether any officers were present or, if so, how many; their demeanor, if present; Yanofsky’s demeanor; or whether any officers or Yanofsky dominated or controlled the interview in an “‘aggressive, confrontational, and/or accusatory’” manner, or otherwise pressured him. (Pilster, supra, 138 Cal.App.4th at p. 1404.)
Defendant does not claim Yanofsky interviewed him at the behest of the police. The record is not clear, but it appears Yanofsky may have conducted the interview as a follow-up to defendant’s failed conditional release, or simply to meet the annual deadline within which SVP committees must be evaluated. (See Welf. & Inst. Code, §§ 6608 [providing for release from civil commitment, subject to conditions]; 6605, subd. (a) [requiring annual mental health evaluations].) Defendant hints on appeal that the possibility he could be recommitted as an SVP even if he were acquitted had a coercive effect, inducing his cooperation with Yanofsky. But he presented no evidence of any coercive effect below. Moreover, it is undisputed the interview with Yanofsky was pursuant to the noncriminal SVP process, not criminal proceedings, therefore defendant had no right to Miranda warnings before his interview with Yanofsky.
Yanofsky noted in his testimony that an impending deadline, the nature of which he did not specify, prevented him from obtaining defendant’s mental health records from Atascadero State Hospital before he interviewed defendant.
Additionally, no evidence suggests Yanofsky coerced defendant to incriminate himself with threats or promises of leniency. Defendant’s reliance on People v. Quinn (1964) 61 Cal.2d 551 (Quinn) is therefore misplaced. (Id. at p. 554 [unwarned admissions about other crimes deemed involuntary where probation officer “told defendant that he would not recommend probation if defendant failed to tell the truth”], superseded by Proposition 8 as stated in People v. Coffman (2004) 34 Cal.4th 1, 116-118 (Coffman).) Yanofsky noted some SVP candidates decline to answer interview questions or refuse to participate altogether. Since defendant was similarly free to do so, the record supports the conclusion his engagement in the interview was voluntary and uncoerced. There is no evidence the concerns about a coercive police environment underlying the Supreme Court’s crafting of Miranda warnings were present. (See Pilster, supra, 138 Cal.App.4th at p. 1405.)
In any event, defendant presents no facts on which to conclude Yanofsky’s interview amounted to a criminal investigation or interrogation. As defendant concedes, Yanofsky interviewed defendant as part of the SVP civil commitment process which, as noted, is noncriminal in nature (Leonard, supra, 78 Cal.App.4th at p. 791) because it is for the purpose of treatment rather than punishment (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1172-1179). Nevertheless, quoting Innis, supra, 446 U.S. 291, defendant asserts Miranda warnings were required because “[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect... amounts to interrogation.” (Innis, at p. 301.) But again, defendant points to no evidence the police were involved in any manner in procuring or conducting the interview. (Compare People v. Polk (1965) 63 Cal.2d 443, 449 (Polk) [“The psychiatrist interviewed each defendant twice at the request of the district attorney’s office”].) Moreover, an SVP interview bears no relation to the Innis scenario, where the officers elicited an admission of guilt by driving the armed robbery suspect past a nearby playground, lamenting it would be “‘too bad if [a] little... girl[] would pick up the gun, maybe kill herself.’” (Id. at p. 295.) Here, defendant identifies no questions in Yanofsky’s interview directed to the pornography charge defendant faced or framed to elicit an admission he was guilty of the charge.
In sum, because there is no basis on which to conclude defendant’s SVP interview with Yanofsky was custodial or coercive within the meaning of Miranda (see Pilster and Quinn, ante) or an interrogation designed to elicit evidence of crime (see Innis, ante; accord, People v. Wader (1993) 5 Cal.4th 610, 637) rather than for treatment purposes, defense counsel cannot be faulted for failing to raise a futile Miranda objection to Yanofsky’s testimony. Defendant’s ineffective assistance of counsel claim is therefore without merit.
2. Massiah
Defendant’s claim of ineffective assistance of counsel based on the absence of a Massiah objection similarly fails. “In Massiah ..., the high court held that once a judicial proceeding has been initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant. [Citations.]” (Coffman, supra, 34 Cal.4th at pp. 66-67.) “To prevail on a Massiah claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” (Id. at p. 67, italics added.) The Massiah right, moreover, is “offense-specific.” (People v. Thornton (2007) 41 Cal.4th 391, 433 (Thornton).) It applies only to preclude questioning concerning the offense on which judicial proceedings have been initiated (ibid.), not other matters.
Defendant would have us view Yanofsky as an informant, but the record is devoid of any suggestion supporting that characterization. True, Yanofsky worked as an independent contractor for the Department of Mental Health, making him in some sense an agent of the government, as defendant argues. But he served in his position as a health professional, not a police officer. (See Welf. & Inst. Code, § 6250 [persons subject to commitment under the SVPA “shall be treated, not as criminals, but as sick persons”].) No evidence painted Yanofsky as an informant. No evidence suggested police investigating the possession charge or any criminal charges against defendant had “encouraged [Yanofsky] to supply information” (Coffman, supra, 34 Cal.4th at p. 68) or that Yanofsky conducted the interview on behalf of the police “to elicit incriminating remarks.” (Id. at p. 67.) The evidence suggests only that the interview was a routine exam in the SVP process; indeed, Yanofsky noted he conducted the interview when he did because of a deadline for his SVP evaluation.
The Sixth Amendment applies by its terms in criminal proceedings, not civil ones. (U.S. Const., 6th Amend.; see, e.g., Gibson v. Gibson (1971) 15 Cal.App.3d 943, 949.)Because, as noted, the SVP evaluation and commitment process is noncriminal in nature and for the purpose of treatment rather than punishment, a routine SVP interview furnishes no reason to mobilize the Massiah rule to protect a defendant’s Sixth Amendment right to counsel. The answer might be different if the police were to press into service an SVP psychologist to elicit incriminating statements from the defendant about a crime (cf. Polk, supra, 63 Cal.2d at p. 449) with which the defendant has been charged, but no evidence suggests that was the case here. As noted, nothing suggests Yanofsky attempted to delve into whether defendant possessed child pornography, let alone the specific tape he was charged with possessing. Consequently, because the Massiah right is offense-specific (Thornton, ante) and nothing suggests Yanofsky participated in investigating defendant for the possession charge he faced, defendant’s ineffective assistance of counsel claim fails. Simply put, a meritless objection by trial counsel on Massiah grounds would have been futile.
C. Jury’s Viewing of the Videotape
Defendant asserts the trial court erred in permitting the jury to view a portion of the videotape he was charged with possessing. Defendant objected on grounds the contents of the tape were more prejudicial than probative. (Evid. Code, § 352.) He asserts the trial court abused its discretion in allowing the viewing because he offered to stipulate the tape depicted child pornography, which should have been sufficient to establish the proscribed nature of the tape. (§ 311.11, subd. (a).)
Defendant is mistaken because the elements of the possession charge required the prosecutor to prove not only that the contents of the tape constituted child pornography, but also that defendant “possesse[d]” the tape and did so “knowingly.” (§ 311.11, subd. (a).) The trial court could reasonably conclude permitting the jury to view the tape was particularly appropriate and probative given defendant’s defense, which attempted to cast doubt on his possession of the tape by suggesting it was “Rudy’s” and to cast doubt on his knowledge of the tape at the time it was found by focusing on his alleged memory problems. Defendant also attacked the possession element by suggesting he was too frail to climb a ladder to exercise the requisite control over the tape. (See § 311.11, subd. (a).)
The trial court did not err. By viewing the tape, the jury could more accurately judge whether its content, which defendant only generically offered to stipulate contained child pornography, was the type of child pornography (e.g., male homosexual acts, perhaps involving oral copulation) that would so particularly appeal to defendant as to: (1) motivate him to find a way up a ladder or direct another to do so on his behalf, (2) not forget the tape despite his alleged memory problems, and (3) make it more likely, given defendant’s intense interest in the subject matter displayed, that the tape was actually his and not “Rudy’s,” who he perhaps fabricated to cast blame elsewhere. Defendant’s reliance on People v. Perry (1985) 166 Cal.App.3d 924 is therefore misplaced. There, the proposed stipulation would not have excluded evidence probative of the elements of the crime. As the trial court correctly observed here, the prosecution had the right to present evidence on all elements of the charge. Having the jury view the tape served this purpose and, again, while it may have damaged defendant, the requisite prejudice under Evidence Code section 352 is “not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (Karis, supra, 46 Cal.3d at p. 638.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.