Opinion
F084332
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. DAVID R. SOUZA, Defendant and Appellant.
Page Law Firm and Edgar E. Page; Schweitzer &Davidian and Eric H. Schweitzer for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Clara M. Levers and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF285006. Melinda Myrle Reed, Judge.
Page Law Firm and Edgar E. Page; Schweitzer &Davidian and Eric H. Schweitzer for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Clara M. Levers and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, ACTING P. J.
INTRODUCTION
In 2021, a jury convicted appellant David R. Souza of nine counts of lewd acts with a minor (Pen. Code, § 288, subd. (a)). The jury also convicted appellant of three additional felonies: (1) distributing obscene material showing sexual conduct by a minor (§ 311.1, subd. (a)); (2) distributing, sending or exhibiting harmful material to a minor (§ 288.2, subd. (a)(1)); and (3) possession of child pornography (§ 311.11, subd. (a)).
All future statutory references are to the Penal Code unless otherwise noted.
The jury was hung regarding one particular charge, and a mistrial was declared for that count. Via a subsequent bench trial, however, the court found appellant guilty in that count of committing a lewd act with a different minor.
The jury acquitted appellant in three counts wherein he was charged with committing lewd acts with a minor.
Appellant received a determinate prison term of 26 years four months.
Prior to trial, appellant filed motions to dismiss a majority of the pending charges. In part, he argued that this prosecution had violated his due process rights. He also challenged below the validity of the warrant used to seize his cellular phone, which contained evidence of his lewd acts and his possession of child pornography. Appellant contends the trial court erred in denying his various motions. We affirm.
BACKGROUND
Appellant was 50 years old when this matter went to trial in 2021. On appeal, he does not challenge the sufficiency of the evidence supporting his 13 felony convictions. We summarize the material facts supporting his judgment. We also summarize the relevant procedural history that is critical to appellant's arguments on appeal.
I. The Charges in Counts 1 through 4.
In 2013, law enforcement received allegations that appellant had inappropriately touched two underaged girls, Jane Doe 1 and Jane Doe 2. Regarding Jane Doe 2, three charges-counts 1 through 3-were filed against appellant alleging he had committed lewd acts with her, such as kissing her and touching her thigh. After hearing the testimony, however, the jury acquitted appellant of the three charges involving Jane Doe 2.
Regarding Jane Doe 1, a single charge-count 4-was filed alleging that appellant had committed a lewd act with her, touching her buttocks. Jane Doe 1 was the daughter of a woman with whom appellant had a romantic relationship. When she was younger than 14 years old, appellant would sometimes scratch Jane Doe 1's back while she was in bed and going to sleep. On at least one occasion, he put his hands under her pajamas and touched her buttocks.
Regarding the single charge involving Jane Doe 1, the jury was hung and a mistrial was declared. In exchange for the prosecution dismissing a multiple victim enhancement allegation, appellant waived his right to a jury trial regarding this charge. The trial court subsequently found appellant guilty in count 4 of willfully committing a lewd act with Jane Doe 1 (§ 288, subd. (a)).
II. The Charges in Counts 5 through 7.
In 2013, after the allegations initially surfaced regarding Jane Does 1 and 2, law enforcement searched appellant's residence and seized his cellular phone. Appellant possessed images of nude underaged girls on his phone, including multiple pictures of a minor manipulating and penetrating her vagina in various ways. Appellant was exchanging child pornography with others, including with minors, on a social messaging app known as Kik. Appellant told another app user that he liked girls aged 12 to 15 years of age.
In counts 5 through 7, the jury convicted appellant of (1) distributing obscene material showing sexual conduct by a minor (§ 311.1, subd. (a)); (2) distributing, sending or exhibiting harmful material to a minor (§ 288.2, subd. (a)(1)); and (3) possession of child pornography (§ 311.11, subd. (a)).
III. The Charges in Counts 8 through 16.
On Kik, appellant's profile picture was that of a boy who appeared to be about 14 to 16 years old. Appellant told girls on Kik that he was younger than 17 years old.
Appellant had numerous interactions with girls on Kik. In many instances, the girls reported to appellant that they were younger than 18 years of age. Appellant would often attempt to engage the apparent underaged girls in sexual chat, and he would often ask them to send him pictures.
One particular victim, Emma, resided in Canada. Emma was under 14 years of age when she exchanged messages with appellant on Kik. When they messaged each other, Emma made it clear to appellant that she was younger than 14. Emma believed that appellant was a 14-year-old boy. They contacted each other for about one year. Although they never spoke or met in person, Emma eventually considered appellant to be her first boyfriend.
Appellant encouraged Emma to take lewd pictures and videos of herself and send them to him. Emma sent images to appellant that showed her breasts, vagina and anus. She sent him pictures and videos showing her touching her breasts. She sent him pictures and videos of her penetrating her vagina with various objects.
At trial, Emma testified against appellant. She told the jury that she had sent numerous lewd photos and videos of herself through Kik to appellant, who was posing as a juvenile. In each instance, it was appellant's idea for her to make and send the lewd content. In counts 8 through 16, the jury convicted appellant of nine separate counts of lewd acts with Emma.
IV. The Relevant Procedural History.
Appellant's arguments on appeal focus on two topics: (1) how officials prosecuted this matter and (2) the validity of the warrant used to seize his cellular phone. We first summarize how this matter was prosecuted, which included a delay in law enforcement's investigation and the eventual filing of two criminal complaints against appellant. Later in this opinion, we summarize the details surrounding the relevant search warrant.
In June 2013, law enforcement searched appellant's home and seized his cellular phone. The lead detective, Daniel Ford, immediately recognized that appellant's phone had images of nude underaged girls. In July 2013, a felony complaint was filed against appellant in Tulare County Superior Court case No. VCF285006 (the first case).
All future references to case numbers are for cases filed in the Tulare County Superior Court unless otherwise noted.
The preliminary hearing in the first case occurred in September 2014. Later that same month, the prosecution filed an information in the first case. The information alleged three counts of lewd conduct with Jane Doe 2, and one count of lewd conduct with Jane Doe 1. In addition, three charges were alleged that involved the images found on appellant's phone: (1) exhibiting a minor in pornography; (2) sending harmful matter to a minor; and (3) possession of matter depicting a minor engaging in sexual conduct. In September 2014, appellant pleaded not guilty to those initial charges in the first case.
When these initial charges were filed, Ford knew that appellant had been using Kik to message with "young ladies under the age of 18." Law enforcement, however, was unable to extract all data from appellant's phone, which was encrypted.
In 2013 and 2014, Ford did not know how to subpoena records from Kik, which is based in Canada. Unbeknownst to Ford, a treaty between the United States and Canadapermitted United States law enforcement officers to subpoena information from Kik. Ford, however, was a new detective and he did not understand how the treaty process worked.
See Treaty Between the Government of the United States of America and the Government of Canada on Mutual Legal Assistance in Criminal Matters, signed March 18, 1985. This treaty was signed at Quebec City, Canada on March 18, 1985. (In re Commissioner's Subpoenas (11th Cir. 2003) 325 F.3d 1287, 1290.) The "advice and consent" of the United States Senate was received for this treaty on October 24, 1989, and the treaty was entered into force on January 24, 1990. (Ibid.)
In early 2015, Ford attended a training and he learned that he could subpoena records from Kik. In 2015, Ford authored a new search warrant to forensically examine appellant's phone. In February 2015, appellant's phone was forensically searched with improved technology. Law enforcement extracted much more incriminating data from the phone showing appellant's possession of images of nude prepubescent and adolescent girls.
In March 2015, Ford subpoenaed records from Kik, which he received that same month. It appeared that Emma resided in a particular area in Canada. Ford made contact with a Canadian detective in that area in the hopes of locating Emma.
In May 2015, a Canadian police officer located Emma, and he made contact with her and her parents. Emma confirmed to the officer that she had sent the lewd images of herself to the Kik account which appellant used while posing as an adolescent boy. That same year, Ford spoke with Emma over the telephone. Emma confirmed with Ford that she had sent the lewd images.
In October 2015, the prosecution filed a second case against appellant in case No. VCF325933 (the second case). The second case involved nine allegations that appellant had conducted lewd acts with Emma, who was a minor.
In June 2017, the trial court granted the prosecution's motion to consolidate the two criminal cases. The consolidated case went to the jury in 2021.
The consolidated matter occurred in case No. VCF285006.
DISCUSSION
I. Appellant's Due Process Rights Were Not Violated.
Appellant contends his due process rights were violated because he faced two criminal cases. Prior to the consolidated trial, appellant repeatedly sought dismissal of the charges involving Emma. He filed a demurrer and multiple motions to dismiss. Appellant asserted below that Ford had failed to exercise due diligence, the charges involving Emma should have been included in the first criminal case, a "misjoinder" had occurred, and this was a "vindictive prosecution."
The trial court denied appellant's demurrer and the various motions to dismiss the nine charges involving appellant's lewd conduct with Emma. The court did not believe a "misjoinder or vindictive prosecution" had occurred. In 2021, the jury found appellant guilty of those nine offenses in the consolidated trial.
In 2017, appellant filed in this court a petition for writ of mandate, prohibition, and/or any other appropriate relief. In 2018, this court denied appellant's petition in case No. F076064. We grant respondent's request and we take judicial notice of our records in case No. F076064. (Evid. Code, § 452, subd. (d).)
In the present claim, appellant asserts the trial court erred in permitting the charges involving Emma (counts 8 through 16) to go to the jury. He contends those convictions must be reversed and those charges dismissed.
Appellant's due process challenge is based on a series of arguments. He claims the prosecution was required to obtain leave from the trial court before they were permitted to file the second case against him. Because no such leave was sought, he maintains the trial court lacked subject matter jurisdiction over the charges involving Emma. In addition, appellant asserts that Ford provided false and/or misleading testimony. Finally, appellant contends that law enforcement failed to show due diligence regarding how it investigated the charges involving Emma. Appellant argues that, even if the trial court had subject matter jurisdiction, it erred when it failed to dismiss these counts. As we explain below, we reject appellant's arguments.
A. Section 1387 is inapplicable and the trial court had subject matter jurisdiction over the charges involving Emma (counts 8 through 16).
Appellant contends the prosecution should have completed its entire criminal investigation before any charges were filed against him. He notes that, during closing arguments at trial, the prosecutor told the jury that, once appellant's cellular phone was seized in 2013, they had everything contained on his phone. Appellant argues that the prosecutor's comments during closing argument show that law enforcement had "all" of the evidence at the time his phone was seized.
According to appellant, the prosecution should have been ready to proceed on all charges at the first preliminary hearing, which occurred in 2014. Appellant maintains that Ford should have known how to investigate the crimes involving Emma, and the prosecution team had ample support from other law enforcement agencies. Appellant contends that the prosecution team failed to show due diligence. He argues that the charges involving Emma involved the same nucleus of operative facts used to obtain the initial holding order in the first case. He asserts that the prosecution did not have any new evidence to justify the filing of the second case.
Appellant relies on section 1387 to establish that the trial court lacked subject matter jurisdiction over the nine charges involving Emma, which were first alleged in the second case. Appellant's reliance on section 1387 is misplaced.
Section 1387 limits the number of times a prosecutor may dismiss and refile charges. (§ 1387, subd. (a); Jackson v. Superior Court (2017) 4 Cal.5th 96, 107.) This statute generally permits a prosecutor to refile felony charges only once following dismissal. (Jackson, at p. 103; see also People v. Trujeque (2015) 61 Cal.4th 227, 255.) "This limitation, known as the 'two-dismissal rule,' was enacted in 1975 in order to prevent harassment of defendants by repeated dismissal and refiling of charges, to limit prosecutorial forum shopping, and to protect defendants' speedy trial rights." (Jackson, at p. 103.)
"The two-dismissal rule contained in section 1387, subdivision (a), bars further prosecution unless an exception applies." (Barron v. Superior Court (2023) 90 Cal.App.5th 628, 636.) Appellant relies on one such exception. A new criminal matter may be filed if "substantial new evidence has been discovered by the prosecution that would not have been known through the exercise of due diligence at, or prior to, the time of termination of the action." (§ 1387, subd. (a)(1).)
Appellant's arguments are meritless regarding section 1387. Nothing in this record demonstrates or even reasonably suggests that the prosecution dismissed the first case against appellant. Because the first case was never dismissed, nothing in the plain language of section 1387 prohibited the prosecution from filing the second case. We will not construe the language of this statute to accomplish a purpose that does not appear on its face. (See Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Section 1387 is inapplicable here.
Moreover, appellant's argument is wholly without merit that the trial court lacked subject matter jurisdiction over the charges involving Emma. Except as provided otherwise by statute, superior courts have original subject matter jurisdiction in all criminal causes. (People v. Robertson (1989) 48 Cal.3d 18, 34, citing Cal. Const., art. VI, § 10.) So long as the crime occurred within California's territorial borders, a competent California court has jurisdiction over the defendant and the charges. (People v. Simon (2001) 25 Cal.4th 1082, 1096.)
Here, the prosecution filed a complaint in the second case (No. VCF325933) which set forth charges against appellant involving Emma. Appellant's criminal conduct occurred within California's jurisdiction. Those charges were eventually consolidated into case No. VCF285006. As a matter of law, the superior court had subject matter jurisdiction over those felony charges, and we reject appellant's arguments to the contrary.
Setting section 1387 aside, appellant is also incorrect that the prosecutor was prohibited from filing the second case. Offenses that are "closely related" should be prosecuted at the same time to avoid denial of fundamental fairness. (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827; see also Hoag v New Jersey (1958) 356 U.S. 464, 467468.) If the evidence needed to prove one offense necessarily proves other offenses, those overlapping offenses must be prosecuted together to avoid harassment and a waste of public funds. (People v. Hurtado (1977) 67 Cal.App.3d 633, 636.)
However, the prohibition against multiple prosecutions applies for offenses arising out of the same act, the same incident, or the same course of conduct. (People v. Douglas (1966) 246 Cal.App.2d 594, 598.) Multiple prosecutions are not barred if the offenses were committed at separate times and locations, against different victims, and with different objectives. (People v. Cuevas (1996) 51 Cal.App.4th 620, 624; People v. Ward (1973) 30 Cal.App.3d 130, 136.)
Appellant possessed and distributed lewd images of Emma to others. However, he also possessed and distributed lewd images of other underaged girls. For instance, through the Kik app, he sent a picture of a girl who appeared to be in "very early stages of puberty" and under 11 years of age. On another occasion, he distributed a picture of what "appears to be a prepubescent child's vagina."
In 2013, the prosecution team knew that appellant possessed lewd images of an apparent underaged girl named Emma. However, it was not until 2015 that law enforcement made contact with her, and confirmed her identity and age. The elements necessary to establish appellant's liability for lewd acts with Emma (§ 288, subd. (a)) were different from the elements necessary to establish his liability for (1) distributing obscene material showing sexual conduct by a minor (§ 311.1, subd. (a)); (2) distributing, sending or exhibiting harmful material to a minor (§ 288.2, subd. (a)(1)); and (3) possession of child pornography (§ 311.11, subd. (a)). (See CALCRIM Nos. 1110, 1140, 1141 &1145.)
Appellant's conversations with others on Kik where he shared lewd images of various underaged girls, including Emma, were separate and distinct from his lewd acts with Emma. Appellant's numerous criminal offenses charged in the two criminal cases occurred at separate times. His crimes involved different criminal objectives. Thus, appellant's charges in the two criminal cases did not arise out of the same act or transaction. (See People v. Ward, supra, 30 Cal.App.3d at p. 136 [mere fact crimes occurred in defendant's vehicle during the same night does not connect them as parts of a continuous course of conduct].) We reject appellant's argument that the prosecutor filed successive cases based upon the same "pre-filing evidence." We likewise reject appellant's assertion that the prosecution was prohibited from filing the second case. The trial court correctly decided that this was not a "vindictive prosecution."
B. The court did not abuse its discretion or otherwise err.
Before the two cases were consolidated, Ford testified in 2017 at the preliminary hearing in the second case (No. VCF325933). Ford explained that, just prior to February 2015, he had attended a training where he learned that Kik (a company based in Canada) "was finally accepting U.S. search warrants for investigations." Ford then took steps to subpoena information from Kik.
Appellant contends that Ford provided false and/or misleading testimony. Via a treaty between the United States and Canada, United States law enforcement officers were permitted to subpoena information from Kik prior to 2015. At the 2021 trial in this matter, Ford admitted that, when he was investigating these crimes, he was a new detective, and he had not understood the treaty process. Ford admitted at trial that he could have obtained information from Kik in 2013, but, in 2013, he had been unaware how to do so.
Appellant argues that Ford testified untruthfully at the 2017 preliminary hearing. According to appellant, Ford made it seem that something had changed in 2015, which finally permitted him to subpoena records from Kik, when, instead, Ford had simply not understood how to obtain the Kik records. Appellant contends the prosecutor failed to alert the trial court about Ford's alleged false testimony, and the prosecutor violated due process by relying on Ford's testimony. Alternatively, appellant argues that Ford acted negligently in how he investigated the allegations involving Emma.
Prior to trial, appellant repeatedly moved the trial court to dismiss the counts involving Emma. Appellant also filed a demurrer. In general, appellant argued that law enforcement had not acted with due diligence in investigating and prosecuting the charges involving Emma. Appellant also asserted below that Ford had provided false and/or misleading testimony. The trial court denied the demurrer and the various motions to dismiss, rejecting appellant's arguments that a due process violation had occurred.
In the present appeal, appellant asserts that, even if the trial court had subject matter jurisdiction over the charges involving Emma, the court nevertheless erred in not dismissing counts 8 through 16. We disagree. This record does not establish that Ford provided false and/or misleading testimony. Moreover, we conclude that appellant did not suffer prejudice from the investigative delay that occurred. We hold that the lower court did not err or abuse its discretion when it rejected appellant's due process arguments.
1. This record does not establish that Ford provided false testimony.
We address the allegation that Ford provided false testimony. During the 2017 preliminary hearing, Ford stated that, while attending a training earlier that year, he had "discovered" that Kik "was finally accepting U.S. search warrants for investigations." At trial in 2021, Ford admitted to the jury that he had not understood how to subpoena records from Kik when he was initially investigating these crimes. Unbeknownst to him when he started this investigation, he could have subpoenaed records from Kik in 2013.
We note that, during the 2017 preliminary hearing, appellant had an opportunity to cross-examine Ford and challenge this testimony which he now contends was false and/or misleading. The defense, however, did not question Ford about this issue during the 2017 preliminary hearing. We will neither reweigh Ford's testimony nor pass judgment on his credibility as a witness. (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)
We reject appellant's assertion that this record demonstrates falsity. Instead, a reasonable inference may be drawn from Ford's 2017 testimony that, instead of providing false testimony, Ford was expressing his memories about how and when he learned he could subpoena records from Kik. In any event, Ford's alleged falsity is not apparent on its face without resorting to inferences or deductions. Consequently, this record does not establish that Ford testified falsely during the 2017 preliminary hearing. (See People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Simpson (1954) 43 Cal.2d 553, 562 [to be deemed false by an appellate court, a witness's falsity must be apparent without resorting to inferences or deductions, or the testimony must be physically impossible].)
Based on this record, we decline to hold that Ford provided false testimony. As such, we reject appellant's numerous arguments that the prosecution relied on false or misleading testimony when prosecuting this matter. We likewise reject appellant's assertion that structural error occurred, requiring dismissal of this case.
Appellant also asserts that respondent has continued to rely on Ford's false and/or misleading testimony during the appeal process. According to appellant, respondent improperly relied on Ford's testimony when it opposed appellant's petition for writ of mandate in 2017 in appellate case No. F076064. Appellant takes the position that this shows an ongoing due process violation. For the reasons stated above, we reject these arguments directed towards respondent.
2. Appellant did not suffer prejudice.
A defendant's due process rights may be violated when law enforcement prejudicially delays-either negligently or purposefully-in bringing criminal charges. (People v. Cowan (2010) 50 Cal.4th 401, 431.)" 'Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.' [Citation.] The justification for the delay is strong when there is 'investigative delay, nothing else.' [Citation.]" (Ibid.)
Nothing in the record establishes or even reasonably suggests that law enforcement purposefully stalled its investigation to gain an advantage. Instead, this appears to be a mere delay in obtaining records from Kik, and nothing more. Even if we assume Ford acted negligently-an issue we need not analyze-appellant's due process claim is without merit because he did not suffer prejudice.
To establish prejudice, appellant contends the prosecution was permitted to file the second case about two years after he entered his "not guilty" plea in the first case. He argues he was no longer in jail custody when the second case was filed against him in 2015. He was rearrested in 2015 and, since that time, he remained in custody pending this consolidated trial. Appellant claims he suffered the "social stigma" of rearrest. He notes that, because the second case was filed against him, he lost any chance of remaining out of custody pending trial. He asserts that he was forced to face two complex criminal matters, which resulted in a longer prison sentence.
Appellant's arguments are wholly without merit. The evidence against him was overwhelming. He committed at least nine separate lewd acts with Emma, a minor he knew to be younger than 14 years of age. He possessed and shared child pornography with others, including with minors. The prosecution conclusively proved that appellant committed 13 felonies stemming from his abhorrent behavior.
The first case against appellant was filed in 2013. The second case was filed in 2015. The two cases were consolidated in 2017. This consolidated trial did not occur until June 2021. After the prosecution filed the second case against him, appellant had more than five years to prepare his defense. During that substantial span of time, appellant consistently entered a general time waiver.
The trial court rejected appellant's due process challenge after questioning whether appellant had suffered any prejudice. Based on the overwhelming strength of the evidence and the history of this matter, we can declare beyond a reasonable doubt that appellant did not suffer harm from how this matter was prosecuted. (See Chapman v. California (1967) 386 U.S. 18, 24.) Likewise, it is not reasonably probable appellant would have had a more favorable result if the delay had not occurred. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The lower court properly found no due process violation. Thus, the lower court neither abused its discretion nor erred when it denied appellant's demurrer and motions to dismiss. Appellant's due process arguments lack merit and this claim fails.
A de novo standard of review is used for the denial of a demurrer. (Hoffman v. Superior Court (2017) 16 Cal.App.5th 1086, 1091.) An abuse of discretion standard is used to review the denial of a motion to dismiss. (People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 445-446.)
II. The Trial Court did not Err in Denying Appellant's Motions to Quash and Suppress.
We turn to the search warrant that led to the discovery of child pornography on appellant's cellular phone.
In 2013, Ford requested this warrant to search appellant's residence and his electronic devices. Ford's affidavit set forth his experience as a detective in the violent crimes unit. He had been a detective for less than a year. He had investigated hundreds of various violent crimes, including sexual assaults. He had 40 hours of training in sexual assault investigations. Prior to being a detective, he was a gang suppression officer for three and a half years. He had attended the police academy and, before that, he had obtained a bachelor's degree in criminal justice and criminology.
Ford recounted in his affidavit his interviews with Jane Does 1 and 2. Ford alleged that appellant had touched these two girls inappropriately. It was alleged that appellant had invited Jane Doe 2 "to his house to hangout a few times" without her parents.
Ford explained in his affidavit that, according to appellant's ex-girlfriend, appellant spent a lot of time on his computer late at night, and he spent a lot of time on his cellular phone. Appellant "was very protective" of his computer, and he would "hover" when someone was using it. Appellant's ex-girlfriend had once "caught him looking at pornography" but she had not noticed anything "unusual about it."
Ford's affidavit never alleged that appellant had viewed child pornography or had shown any pornography to the two Jane Does. The affidavit did not allege that appellant had used electronic devices when touching the Jane Does inappropriately. However, Ford informed the magistrate that, based on his (Ford's) training, experience, conversations with other law enforcement officers, and reports that Ford had read, Ford was aware of "characteristics" that are "generally found in varying combinations in people who commit lewd and lascivious acts with minors as well as people who produce, trade, distribute or possess[ ] images/pictures of minors engaged in sexually explicit conduct." Ford detailed how such people see children as sexual objects, and such people collect sexually explicit images or pictures for their own sexual gratification. Such pictures are sold or traded with others. Explicit images of children are kept in digital formats. As a result, Ford asked the magistrate for "permission to search for and seize any and all computer systems, phones or related paraphernalia that may be located at [appellant's] residence or on his person." Ford made this request because he believed "that if these images are located, it will tend to show that [appellant] was physically contacting these victims with the intent to gain sexual gratification from them."
The magistrate approved the search warrant. In 2013, Ford seized appellant's cellular phone as part of the authorized search of appellant's residence. Child pornography was discovered on appellant's phone, along with his messages with Emma and other apparently underaged girls. Before trial, appellant moved to quash the warrant and to suppress this evidence. The trial court denied the motion to quash and suppress.Appellant later filed renewed motions to quash and suppress, which the court denied.
In the second prosecution in case No. VCF325933, the prosecution charged appellant with two counts of misdemeanor child molesting (§ 647.6, subd. (a)(1)) involving two minors other than Emma. The trial court dismissed these two counts as being outside the statute of limitations.
In 2019, appellant filed in this court a petition for writ of mandate, prohibition, and/or any other appropriate relief. That same month, this court denied appellant's petition in case No. F080002. We grant respondent's request and we take judicial notice of our records in case No. F080002. (Evid. Code, § 452, subd. (d).)
In the present claim, appellant primarily seeks reversal of his convictions in counts 5 through 16. He contends that the trial court erred in denying the motions to quash the warrant and suppress the evidence. According to appellant, nothing reasonably linked his alleged child molestation to his possession of child pornography. He notes that Ford's affidavit does not mention any training or experience with child pornography, child molestation or Internet crimes. Appellant maintains that the trial court erred.
Counts 5 through 7 deal with appellant's possession and distribution of child pornography. Counts 8 through 16 involve his lewd acts with Emma. In passing, appellant also asks this court to reverse his conviction in count 4 and dismiss that charge based on the trial court's alleged failure to grant his motions to quash and suppress. Count 4 involves the lewd act with Jane Doe 1.
Appellant's claim raises three arguments. First, he contends the search warrant lacked probable cause. Second, he reasserts his previous claim that the prosecution improperly filed two criminal cases against him. Finally, he argues that the information supporting the warrant was stale because Ford requested the search warrant in June 2013 but appellant's most recent alleged child molestation had occurred in May 2012.
The parties in this matter disagree whether probable cause existed and whether the information supporting the warrant was stale. We conclude respondent has the better position, and we hold that probable cause supported the June 2013 search warrant in this matter. As such, appellant's claim is without merit. In any event, we also conclude that, even if we presume the warrant lacked sufficient probable cause or was stale, the trial court nevertheless did not err in denying the various motions to suppress and quash. The good faith exception to the exclusionary rule overwhelmingly applies in this situation.
A. The warrant was based on probable cause.
In relevant part, the Fourth Amendment to the United States Constitution requires a search warrant to be based on probable cause supported by an oath or affirmation. (U.S. Const., 4th Amend.; see also Cal. Const., art. I, § 13; § 1525.) Probable cause to issue a search warrant exists if "there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238.) Probable cause is not measurable by formulas; rather, its existence depends on the totality of the circumstances. (Id. at p. 230-232.)
An affidavit in support of a search warrant carries with it a presumption of validity. (Franks v. Delaware (1978) 438 U.S. 154, 171.) A judicial determination to authorize a search warrant will be overturned only if the affidavit upon which it is based fails as a matter of law to set forth sufficient competent evidence to support the magistrate's probable cause finding. (Fenwick &West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.)
Courts resolve doubtful or marginal cases in favor of the warrant. (United States v. Ventresca (1965) 380 U.S. 102, 109.) However, a court must review the sufficiency of affidavits conscientiously to ensure that the magistrate had sufficient information and did not merely ratify the bare conclusions of others. (Illinois v. Gates, supra, 462 U.S. at p. 239.)
1. A fair probability existed that appellant was possessing child pornography.
At the federal level, courts are split regarding whether evidence of child molestation, without more, is sufficient to establish probable cause to search for child pornography. (See Dougherty v. City of Covina (9th Cir. 2011) 654 F.3d 892, 899 [explaining this split of authority].) The Ninth Circuit Court of Appeals held that an affidavit alleging child molestation coupled with an assertion that those who molest children are likely to possess child pornography is insufficient to establish probable cause to search for child pornography. (Id. at pp. 899; see also United States v. Patton (9th Cir. 2016) 650 Fed.Appx. 324 [reaffirming this holding].) In contrast, the Eighth Circuit Court of Appeals held that "an intuitive relationship" exists between child molestation and possession of child pornography. (United States v. Colbert (8th Cir. 2010) 605 F.3d 573, 578.) Possession of child pornography is a logical precursor to physical interaction with a child, and proof of one supplies probable cause to search for the other. (Ibid.; see also United States v. Scott (7th Cir. 2018) 901 F.3d 842, 844 [recognizing this holding in the Eighth Circuit Court of Appeals].)
Respondent relies on People v. Nicholls (2008) 159 Cal.App.4th 703 (Nicholls). In Nicholls, the appellate court found probable cause to search for child pornography based on an affidavit that was similar to the one Ford submitted in this matter.
In Nicholls, evidence showed that the defendant had molested his 10-year-old daughter. (Nicholls, supra, 159 Cal.App.4th at p. 705.) A police detective submitted an affidavit to obtain a warrant to search the defendant's computer and laptop bag. In the affidavit, the detective described his experience, which included some training in child pornography and Internet crimes. (Id. at pp. 705-706.) The affidavit set forth in detail the victim's description of multiple incidents of molestation by the defendant. (Id. at p. 706.) The affidavit described a recorded jail conversation in which the defendant told his mother that his computer was in his laptop bag in her attic, and he did not want anyone ["messing"] with it. (Ibid.) Based on his training, knowledge and experience, the detective informed the magistrate that a number of "characteristics are generally found to exist in varying combinations" regarding "people who molest children." (Id. at p. 707.) The affidavit explained in great detail that child molesters receive sexual gratification from child pornography, they collect and share child pornography, and they rarely dispose of such materials. (Ibid.) The magistrate authorized the search warrant, and police found 10,000 still images and 47 movie files of child pornography on the defendant's computer. (Ibid.)
The defendant in Nicholls moved to quash the warrant, arguing that it was not supported by probable cause because there was no evidence that pornography was involved in the alleged molestations or that he possessed any child pornography. The appellate court upheld the search warrant. (Nicholls, supra, 159 Cal.App.4th at p. 713.) The Nicholls court found there was "abundant evidence of child molestation," and the defendant had expressed concern that no one should" 'mess' with his computer." This was sufficient to show that the defendant "was a member of the class of persons who tended to keep child pornography on a computer." (Ibid.)
The Nicholls court declined to resolve "whether the detective's expert opinion, standing alone, was sufficient to show probable cause." (Nicholls, supra, 159 Cal.App.4th at p. 715.) The appellate court concluded that the application for the search warrant "was supported by more than the detective's opinion that child molesters collect and store child pornography. It was supported by statements of the child that defendant molested her as recently as two weeks earlier, and by his storing his computer in a hot garage and asking his mother not to let anyone 'mess' with it." (Ibid.)
Appellant argues that Nicholls is factually distinguishable. He points out that, unlike the defendant in Nicholls, he (appellant) had not recently molested anyone. Appellant also asserts that he was not as protective of his computer as was shown for the defendant in Nicholls. Appellant contends that Ford merely proceeded on a "hunch."
We reject appellant's contention that we can disregard Nicholls. Instead, Ford's affidavit was similar in material respects to the one upheld in Nicholls.
As in Nicholls, there was "abundant evidence" appellant had committed child molestation. Based on the allegations from the Jane Does, the magistrate could draw a reasonable inference appellant had touched two girls inappropriately, and those touchings occurred over an extended period of time. A reasonable inference could also be drawn that appellant was trying to prevent others from inadvertently finding something on this computer. Appellant was "very protective" of his computer and he would 'hover" when others used it. From this, a reasonable inference may be drawn that appellant had something to hide on his electronic devices. Appellant's concerns about his computer are similar to the defendant in Nicholls.
Given the similarities to Nicholls, we need not resolve whether Ford's opinion, standing alone, was sufficient to show probable cause. (Nicholls, supra, 159 Cal.App.4th at p. 715.) We also need not address whether Ford was qualified to make his assertions about child pornography. Instead, Ford's application was supported by more than his mere opinion that child molesters collect and store child pornography.
We note that, when the trial court denied appellant's motion to suppress, the court expressed its own personal belief that a logical "nexus" exists between "somebody who's accused of child molest and somebody who views child pornography. I do see a connection between those two alleged offenses." A short time later, the court stated, "The bottom line is I do see a nexus between child pornography and child molestation." The court did not believe this was "the strongest case in the world, but it is enough for me, and I'm denying your motion to suppress and to quash."
Based on the totality of the circumstances, Ford's affidavit amply demonstrated a "fair probability" contraband or evidence of a crime would be found on appellant's electronic devices. (See Illinois v. Gates, supra, 462 U.S. at p. 238.) Ford's affidavit demonstrated that appellant had allegedly touched young girls inappropriately. The affidavit showed that appellant was very protective of his electronic devices. Ford established a logical nexus between appellant's inappropriate touching and his possession of child pornography. Thus, Ford's affidavit was sufficient to show that appellant "was a member of the class of persons who tended to keep child pornography on a computer." (Nicholls, supra, 159 Cal.App.4th at p. 713.) Accordingly, we hold that probable cause existed to search appellant's electronic devices.
2. The information was not stale.
Information in an affidavit may be deemed stale and unworthy of consideration if it is too remote in time to justify a finding of probable cause at the time the search warrant is sought. (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) However, there is no bright-line rule for determining when information becomes stale; the question depends on the unique circumstances involved in each case. (People v. Carrington (2009) 47 Cal.4th 145, 163.) It is not unusual for courts to uphold warrants despite significant delays intervening between the issuance of a warrant and the underlying evidence of criminal activity-if there is either reason to believe that criminal activity is ongoing or that evidence of criminality remains in the location to be searched. (Carrington, supra, at p. 164; People v. Stipo (2011) 195 Cal.App.4th 664, 672.)
Here, Ford sought the search warrant in June 2013. He alleged in his affidavit that appellant's lewd acts with Jane Doe 1 had occurred just over one year prior. He alleged that appellant's lewd acts with Jane Doe 2 had occurred about five years prior.
When denying the motion to quash and suppress, the trial court rejected appellant's arguments that this information was stale. The court found appellant was engaging in ongoing and continuous illegal conduct. We agree.
This was not a drug case where the suspected contraband could be quickly consumed or sold. Ford's affidavit reasonably suggested that appellant was engaging in repeated illegal acts with minors over a span of years. Coupled with the concerns that appellant was protective of his computer, the totality of the circumstances reasonably suggested appellant was collecting and storing illegal images. Thus, the trial court had ample grounds to reject appellant's arguments that the information was stale.
This record does not demonstrate that the trial court erred in denying appellant's motion to quash the warrant and suppress the evidence. This claim is without merit and we will not reverse appellant's judgment. As we explain below, even if this warrant lacked probable cause, reversal is still inappropriate based on the good faith exception to the exclusionary rule.
B. The good faith exception applies.
Evidence seized in violation of the Fourth Amendment is excluded at trial. The exclusionary rule is a judicially created remedy designed to deter law enforcement misconduct. (See United States v. Leon (1984) 468 U.S. 897, 906 (Leon).) However, the exclusionary rule does not apply in all situations. If a search warrant is found to be invalid for lack of probable cause, the exclusionary rule does not bar the introduction of seized evidence if the police officers acted in objectively reasonable reliance on the warrant that was issued by a detached and neutral magistrate. (Id. at p. 900; People v. Willis (2002) 28 Cal.4th 22, 30; People v. Lim (2000) 85 Cal.App.4th 1289, 1296.) This is "known as the good faith exception to the exclusionary rule." (People v. Willis, supra, at p. 29.)
If a warrant lacks probable cause, "the exclusionary rule does not, and cannot, cure the constitutional violation, which is fully accomplished by the illegal search itself." (People v. Willis, supra, 28 Cal.4th at p. 29.) If an officer acts with objective good faith and obtains a search warrant from a judge, there is no police illegality and, thus, there is nothing to deter. (Id. at p. 31.) It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause, and an officer cannot be expected to question such a judicial determination. (Ibid.) Penalizing the officer for the magistrate's error does not contribute to the deterrence of Fourth Amendment violations. (Ibid.)
Four situations exist where the good faith exception is inapplicable.
(1) The magistrate who authorized the warrant was misled by information that the officer knew or should have known was false;
(2) The magistrate wholly abandoned his or her judicial role;
(3) The affidavit was so lacking in indicia of probable cause that it would be entirely unreasonable for an officer to believe such cause existed; and
(4) The warrant was so facially deficient that the executing officer could not have reasonably presumed it to be valid. (Leon, supra, 468 U.S. at p. 923; People v. Lim, supra, 85 Cal.App.4th at p. 1296.)
The Supreme Court has held that" 'a warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has 'acted in good faith in conducting the search.'" (Leon, supra, 468 U.S. at p. 922, quoting United States v. Ross (1982) 456 U.S. 798, 823, fn. 32.) Nevertheless, the government bears the burden of demonstrating that officers were objectively reasonable in relying on an invalid warrant. (United States v. Clark (2d Cir. 2011) 638 F.3d 89, 100.)
Here, appellant does not assert that the issuing magistrate was misled. Likewise, appellant does not contend that the magistrate abandoned his or her judicial role, or that the warrant was so facially deficient Ford could not have reasonably presumed it to be valid. The sole issue which appellant raises is whether Ford's affidavit lacked probable cause so that it was unreasonable for any officer to believe probable cause existed to seize appellant's phone.
Ford submitted a detailed affidavit to the magistrate, who approved the warrant to search appellant's residence and his electronic devices. Ford's affidavit was very similar to the affidavit that was upheld in Nicholls. Ford summarized the allegations of appellant's child molestation. Ford opined, based on his experience, that persons performing such acts often maintain child pornography on their computers.
In light of Nicholls, supra, 159 Cal.App.4th 703 and the split among federal circuits as to whether evidence of child molestation is sufficient to establish probable cause to search for child pornography, Ford's reliance on the warrant cannot be viewed as unreasonable. Indeed, when denying appellant's motion below, the trial court itself noted that a logical "nexus" exists between "somebody who's accused of child molest and somebody who views child pornography. I do see a connection between those two alleged offenses." Under these circumstances, it cannot be stated that Ford's affidavit was so lacking in indicia of probable cause that it would be entirely unreasonable for Ford to believe such cause existed. Accordingly, the good faith exception to the exclusionary rule applies here. Respondent has met its burden of demonstrating that Ford reasonably relied on the warrant, which was issued by a detached and neutral magistrate. Thus, no police illegality occurred and there is nothing to deter. (See People v. Willis, supra, 28 Cal.4th at p. 31.) Based on the good faith exception, this claim is without merit. (See Leon, supra, 468 U.S. at p. 900; People v. Willis, supra, at p. 30; People v. Lim, supra, 85 Cal.App.4th at p. 1296.)
III. Cumulative Error did not Occur.
Appellant raises a claim of cumulative error. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
We reject appellant's claim of cumulative error because we have denied all of his individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) Taking all of appellant's claims into account, we are satisfied that he received a fair adjudication regarding his guilt.
IV. Appellant's Unsupported Assertions are Deemed Waived.
Intermixed throughout his opening brief, appellant makes assertions that appear to raise other claims that we do not resolve in this opinion. For instance, appellant contends that, at sentencing, the trial court failed to calculate pretrial credits correctly. Appellant states that the trial court erred in how it resolved certain motions in limine, and how it permitted introduction of certain trial testimony. In an apparent effort to provide support for these various points, appellant states in his opening brief that he "incorporates by reference all of his prior filings, objections and oral arguments" that occurred below.
Respondent contends that these additional claims do not comply with the California Rules of Court because appellant fails to cite to the record. Respondent asserts that these additional claims should be deemed waived. We agree.
An appellate brief must provide citations to the record regarding any matter which is alleged. (Cal. Rules of Court, rule 8.204(a)(1)(B) &(C).) It is a defendant's responsibility to affirmatively demonstrate error and present triable issues with citations to the record. (Allen v. Liberman (2014) 227 Cal.App.4th 46, 53.) Appellate review is limited to issues which have been adequately raised and briefed. (Ibid.)
In raising these additional concerns, appellant fails to cite to the record and/or he fails to develop these assertions with any meaningful legal analysis. Thus, his brief in this regard is deficient. We deem those conclusory assertions waived. (See In re S.C. (2006) 138 Cal.App.4th 396, 408.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: PENA, J., MEEHAN, J.