Opinion
C086736
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. RICKY LEE LEACH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM044282)
Defendant Ricky Lee Leach appeals from convictions of two counts of possession of child pornography. He was convicted of possession of child pornography in violation of Penal Code section 311.11, subdivision (a), and possession of more than 600 images of child pornography in violation of subdivision (c)(1). On appeal, he contends: (1) he could not be convicted of both offenses because section 311.11, subdivision (c)(1), is a penalty provision of subdivision (a) rather than a separate offense; (2) there was insufficient evidence to support his conviction for possessing more than 600 images of child pornography; and (3) the trial court abused its discretion when it denied his Romero motion to strike his prior strikes.
Undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We agree defendant cannot be convicted of violating both subdivisions of section 311.11 for the possession of material found in the same location at the same time, and we will vacate his conviction for count 1. Additionally, there is a typographical error in the abstract of judgment that must be corrected. We will otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During the execution of a search warrant at defendant's home to search for electronic devices, defendant informed Detective Jason Miller that there might be some child pornography on his computer because he used Google to search for "teen porn." In the search, the detective found a computer, two hard drives, a cell phone, and a receipt for a storage unit. There were about 2,400 images of child pornography and child erotica on defendant's cell phone. On defendant's computer, the detective found more than 6,500 images of child pornography or child erotica, including images found in the deleted or unallocated areas of the computer's hard drive. The detective found "several" duplicate images in multiple locations on defendant's computer or on both his computer and cell phone. The detective testified that he identified at least 600 images of child pornography on defendant's computer; at least 10 of those images depicted a child under the age of 12.
Detective Miller sent the images to the National Center for Missing and Exploited Children (NCMEC) to add to its database. He explained that when law enforcement agencies locate images of child pornography, they "hash" the images and send them to NCMEC. He explained a "hash is like a fingerprint" for an image and moving or renaming the image in a computer will not change the hash unless the image is itself modified. Of the hashed images sent to NCMEC, 231 were returned as "known" images involving a victim known to law enforcement, and "[j]ust over 1,500" of the images were returned as "recognized hash values" that are images of unknown victims that have already been classified by NCMEC as child pornography.
Defendant was convicted following a bench trial of one count of possession of child or youth pornography (§ 311.11, subd. (a)) (count 1), and one count of possession of over 600 images of child or youth pornography (§ 311.11, subd. (c)(1)) (count 2). Defendant then filed a Romero motion, asking the court to strike the punishment for two 1982 strike convictions for rape (§§ 667, subd. (d), 1170.12, subd. (b)). Defendant argued the court should consider his background, character and prospects to find him outside the spirit of the three strikes law. The exhibits included letters from defendant and his sister regarding the physical, emotional, and sexual abuse they had experienced in their childhood, along with information showing defendant's education and work history. In its opposition to the motion, the prosecution included information from follow-up interviews with the two victims of the 1982 rapes, regarding the impact of the rapes. Detective Miller testified for the prosecution in response to the Romero motion. The detective found images of defendant's daughter, taken when she was 10 or 11 years old, on defendant's computer. One photograph showed defendant's daughter lying on a bed with her shirt pulled up and her underwear pulled to the side, exposing her vaginal area. A second photograph showed a close-up image of a girl's buttocks and exposed vaginal area with the same sheets on the bed as the image of defendant's daughter. The photographs were taken with the same model Nikon camera that was found in defendant's storage unit.
The trial court denied defendant's Romero motion, concluding that he fit "squarely within the three strikes law" and noting his prior strike convictions caused "continuing trauma to the victims of those crimes." Further, the court noted defendant was facing additional charges for committing lewd and lascivious acts with his daughter when she was under the age of 14, and the court had received testimony about evidence supporting those pending charges from Detective Miller during the Romero hearing. The court concluded the defendant's future prospects were "dim." Subsequently, the court sentenced defendant to serve concurrent terms of 25 years to life for counts 1 and 2.
DISCUSSION
I
Duplicative Conviction under Penalty Provision
Defendant contends, and the Attorney General concedes, he cannot be convicted of violating both subdivision (a) and subdivision (c)(1) of section 311.11, because the latter subdivision is a penalty provision rather than a separate offense. We accept the Attorney General's concession.
Counts 1 and 2 both punished defendant for the same criminal act of possessing child pornography under section 311.11, subdivisions (a) and (c)(1). Subdivision (c)(1) establishes increased penalties for a violation of subdivision (a), under specified circumstances. In People v. Muhammad (2007) 157 Cal.App.4th 484, the court explained a penalty provision in a statute enhances punishment for the defined crime rather than altering the definition of the crime. (Id. at pp. 492-493.) Section 311.11, subdivision (c)(1), increased the penalty for the possession of more than 600 images of child pornography but it does not alter the definition of the underlying crime under subdivision (a). The record shows defendant violated section 311.11 only once, based on his possession of child pornography at the same time and in the same place. (See People v. Manfredi (2008) 169 Cal.App.4th 622, 633-634 [possession of multiple images of child pornography cannot be "fragmented" into separate counts where the images are possessed simultaneously and are "found at the same time and in the same place"].) Accordingly, his conviction for count 1 (violation of subdivision (a) of section 311.11) must be vacated.
II
Sufficiency of the Evidence for Count 2
Defendant contends there was insufficient evidence to show he possessed more than 600 images in violation of section 311.11, subdivision (c)(1) (count 2), including 10 or more images involving a prepubescent minor under 12 years old (§ 311.11, subd. (c)(1)). He argues Detective Miller's estimates of the ages of the children in the images were mere guesses and the prosecution failed to establish there were more than 600 unique images that qualified as child pornography. He raises several sub-contentions. First, he contends the trial court erred in overruling his continuing objection to Detective Miller's qualifications. Second, he contends the prosecution relied on hearsay evidence in Detective Miller's testimony citing the NCMEC's identification of images that also lacked foundation. Third, he contends Detective Miller's testimony failed to establish there were at least 600 images of children "personally engaging in or simulating sexual conduct" within the meaning of section 311.11, subdivision (a), because he conceded a number of the images depicted what he described as "child erotica" rather than "child pornography." Finally, he contends Detective Miller may have improperly counted duplicate images to reach the 600-image statutory threshold. We disagree.
The test for sufficiency of the evidence is whether in reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1067.) Substantial evidence is evidence that is "reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.) In reviewing a record for substantial evidence, an appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)
Defendant argues Detective Miller was not qualified to testify as an expert regarding the ages of the children in the images because his area of expertise was in forensic analysis of electronics and he lacks a college education. He objected at trial on this basis, contending the detective lacked "medical training" to estimate the children's ages. The trial court overruled the objection, finding Detective Miller qualified to state his opinions on the ages of the children based on his training and experience. First, defendant cites no authority for the proposition that special expertise is required to express an opinion of the age of an individual depicted in an image. To the contrary, a lay witness may testify to an opinion if it is rationally based on the witness's perception and if it is helpful to a clear understanding of his or her testimony. (Evid. Code, § 800; see People v. Caldwell (1921) 55 Cal.App. 280, 296 [reasoning that a lay witness may give an opinion on "the age of one whose age is the subject of judicial inquiry"].) Detective Miller's testimony was sufficiently specific to support a lay opinion regarding the ages of the individuals in the images. Second, the trial court properly found Detective Miller qualified to state his opinions regarding the ages of the children in the images. He testified that part of his job working in the sex crimes unit required him to determine whether particular images depict minors by "examining the overall development of the child." He explained he had experience determining whether there was child pornography on hundreds of devices over the course of six years. And he testified he had undertaken training classes on human anatomy and developmental stages. The trial court properly found him qualified to state his opinions on the ages of the children in the images on this basis. Defendant's argument fails.
Second, defendant contends, and the Attorney General assumes arguendo, the NCMEC's analysis of the images was inadmissible hearsay. However, Detective Miller's testimony did not indicate the NCMEC results formed the basis for his opinion. Rather, he testified he personally found more than 10 qualifying images that included children under the age of 12, based on his own training and experience. Further, he testified that he identified "at least 600 images of child pornography" on defendant's computer. Accordingly, while the hearsay evidence may have confirmed the detective's opinion, it did not form the basis for his opinion.
Third, defendant claims Detective Miller's testimony was insufficient to establish there were at least 600 images of children "personally engaging in or simulating sexual conduct." While defendant argues some of the material could have been "child erotica" not falling within the statutory prohibition because the detective conceded that a "larger" portion of the 6,500 images "might have been" child erotica, the detective clearly testified he identified "at least 600 images of child pornography." Furthermore, Detective Miller defined "child erotica" as imagery of "a child that's dressed sexually or a photo that's normally taken where the focus is more on the genital area of the child." This description of "child erotica" falls within the statutory definition of prohibited material depicting child sexual conduct that includes "exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer . . . ." (§ 311.4. subd. (d)(1).) Because Detective Miller was qualified to identify the images as child pornography and the ages of the victims depicted in them, and his testimony was not physically impossible or inherently improbable, it is sufficient to support the conviction. (See Young, supra, 34 Cal.4th at p. 1181.)
Finally, defendant's argument that duplicate images may have been improperly counted to reach the 600-image statutory threshold is unavailing. While the detective did not know how many of the 2,400 images of child pornography on defendant's cell phone or the 6,500 images of child pornography on the computer were duplicates, he estimated there were "several" duplicate images in multiple locations on defendant's computer or on both his computer and cell phone. The detective's use of the word "several" does not imply a substantial portion of the 8,900 total images were duplicates. When pressed during cross-examination, the detective said that of the 6,500 images on the computer, "some" images were found as many as "three, four times." Even assuming each unique image among the 6,500 images on defendant's computer was found four times, inflating the total number as defendant suggests, that would mean there were still approximately 1,625 unique qualifying images on the computer alone. Further, the detective testified there were "at least 600 images of child pornography on the defendant's computer." There was no indication in his testimony that any of these 600 qualifying images were duplicates. Accordingly, we reject defendant's contention. Reviewing the whole record in the light most favorable to the judgment, we conclude Detective Miller's testimony was sufficient to support the conviction.
III
Romero Motion
Defendant contends the trial court abused its discretion in denying his Romero motion to strike his two qualifying prior strikes. (See Romero, supra, 13 Cal.4th at pp. 529-530.) He argues the court relied on impermissible factors, victim impact evidence from the strike priors and charges pending against defendant in another case, and failed to consider mitigating evidence. We are not persuaded.
A trial court has the discretion to dismiss strike conviction allegations in the interests of justice under section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at p. 504.) In deciding whether to exercise its discretion to dismiss strike allegations, the trial court must determine whether the defendant should be deemed outside the spirit of the three strikes law "and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) In making this determination the court must consider three factors: (1) the nature and circumstances of his or her present felonies; (2) the nature and circumstances of his or her strike offenses; and (3) the particulars of the defendant's background, character, and prospects for the future. (Id. at p. 161.)
We review the trial court's decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
Here, the trial court properly exercised its discretion in denying defendant's Romero motion. Defendant cites no authority for the proposition that a court may not consider victim impact evidence or uncharged misconduct in the Romero context. The authorities he does cite are not analogous. Defendant cites United States v. Watts (1997) 519 U.S. 148, 157 , where the court held a sentencing court may rely on evidence outside of the record for the purpose of sentencing only when it is proved by a preponderance of the evidence. But defendant does not cite any authority applying this rule to the court's exercise of its discretion in Romero proceedings. Indeed, under Romero, the trial court was charged with considering the defendant's entire criminal history in determining whether, in light of his "background, character, and prospects," he could be deemed outside the spirit of three strikes sentencing scheme. (Williams, supra, 17 Cal.4th at p. 161.) Similarly, defendant's perfunctory claim that the trial court failed to consider mitigating factors also fails. The record shows the court was aware of its discretion and the Romero factors and determined defendant fell "squarely within the three strikes law."
IV
Typographical Error in Abstract of Judgment
As the Attorney General points out, the abstract of judgment lists defendant's sentence both as an indeterminate term of life with the possibility of parole (item 5), and 25 years to life (item 6). During the oral pronouncement of judgment, the trial court sentenced defendant to serve two concurrent terms of 25 years to life, not an indeterminate term of life with the possibility of parole. Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the former controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The typographical error in the abstract of judgment should be corrected to eliminate the indication item 5 applies to defendant's sentence.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting that the conviction on count 1 for possession of child pornography is vacated. The trial court is further directed to correct the abstract of judgment to remove item 5, which incorrectly indicates defendant is subject to an indeterminate term of life in prison with the possibility of parole. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
MURRAY, Acting P. J. /s/_________
RENNER, J.