Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Court of San Diego County, Super. Ct. No. SCN270983, K. Michael Kirkman, Judge.
McCONNELL, P.J.
This appeal arises out of Bryon Lee Spruill's conviction of one count each of knowingly distributing matter depicting a minor engaging in or simulating sexual conduct and knowingly possessing matter depicting a minor engaging in or simulating sexual conduct and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL AND PROCEDURAL BACKGROUND
In September 2009, the police received a cyber tip from the National Center for Missing and Exploited Children (NCMEC) regarding pornographic images of children that were uploaded from Internet subscriber accounts ultimately identified as Spruill's. Based on their investigation, officers from the San Diego Internet Crimes Against Children Task Force executed a search warrant in December 2009 at the home where Spruill lived with his parents and stepbrothers.
After they arrived at the home, the officers showed the family the search warrant, which authorized a search for child pornography. One of the officers asked to talk to Spruill's mother and Spruill indicated that it was "really important that [the officer] talk to [him] first." Spruill told the officer that he had visited numerous child pornography sites and made prayer cards for child victims in an attempt to help them. The officer advised Spruill of his Miranda rights and he agreed to continue talking to her, admitting that the Internet subscriber accounts were his and that he had accessed the sites.
As part of their search of Spruill's home, police used a program developed by the Federal Bureau of Investigation to search all of the family's computers for child pornography. After finding two videos and four photographs of interest on Spruill's personal laptop and determining that the videos had been accessed earlier that same day, the officers seized the computer. When another officer showed Spruill one of the images identified by the NCMEC cyber tip, Spruill indicated that he shared pornographic images with others so that they would share new images with him.
Spruill was later arrested and charged with one count each of knowingly distributing matter depicting a minor engaging in or simulating sexual conduct (count 1) and knowingly possessing matter depicting a minor engaging in or simulating sexual conduct (count 2). At trial, the prosecution introduced evidence of the foregoing, as well as evidence that Spruill's computer had more than 2, 000 images of child pornography and nine pornographic videos in its temporary Internet files. Spruill's defense was that he had accessed the Web sites solely to find the names of child victims so that he could create prayer cards for them.
A jury convicted Spruill of both counts. At the sentencing hearing, the court denied Spruill's motion to reduce the charges to misdemeanors (see Pen. Code, §§ 311.1, subd. (a), 311.11, subd. (a)) and sentenced him to 365 days of local time, followed by three years' formal probation. It awarded Spruill 312 days of custody credits (156 actual time plus 156 days of conduct credits pursuant to Pen. Code, § 4019), imposed an $800 fine, a $200 restitution fine, a $200 probation revocation fine, a $154 booking fee, a $300 fine pursuant to Penal Code section 290.3, a $60 court security fee and a $60 criminal conviction assessment. It imposed numerous conditions of probation, including, that he (1) participate in counseling, (2) not associate with minors except in the presence of an authorized adult, (3) not possess photographic equipment or video games, (4) not possess a computer with Internet access unless approved by his probation officer and (5) participate in electronic monitoring.
Spruill appeals. His appellate counsel has filed a brief indicating that he has been unable to identify any argument for reversal and instead asks this court to review the record for error as mandated by People v. Wende, supra, 25 Cal.3d at p. 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), the brief identifies the following issues as possible, but not arguable, on appeal:
1. Was the possession of child pornography charge a lesser included offense of the distributing child pornography charge?
2. Did the trial court err by failing to instruct the jury regarding the need to render a unanimous verdict on count 1?
3. Was there sufficient evidence for the jury to conclude that the images were in fact child pornography?
4. Could Spruill properly be convicted of possessing images that had been deleted from his computer?
In response to this court's invitation, Spruill has filed his own brief, contending that he feels the jury was biased against him because of the pendency of a well-publicized murder prosecution against another man in San Diego during his trial and because there were no Blacks on the jury panel that convicted him. He also suggests that his trial attorney rendered him ineffective assistance of counsel because the attorney did not argue that his conduct was protected by his constitutional right to the freedom of religion and was undertaken solely for religious reasons.
Spruill is Black.
DISCUSSION
We have reviewed the record in accordance with Wende and Anders and not found any reasonably arguable appellate issues. Insofar as Spruill raises arguments regarding jury bias, the make-up of the jury panel and ineffective assistance of counsel, his arguments are not substantiated by the record currently before this court and, in light of the fundamental principle of appellate review presuming that a judgment is correct absent an affirmative showing to the contrary by an appellant, these arguments do not support a reversal of the judgment. (See generally Osgood v. Landon (2005) 127 Cal.App.4th 425, 435; People v. Kelly (1992) 1 Cal.4th 495, 520 [where a defendant challenges his counsel's failure to act, he must show that the failure was not a tactical choice and where the record does not establish this, we must reject the claim unless counsel was asked for an explanation and failed to provide one or there could be no satisfactory explanation for the omission].) Spruill has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J.IRION, J.