Opinion
A127039
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT CHARLES SUDAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. SC144760)
Sentenced to seven years four months on jury convictions of stalking; two counts of first degree burglary; unauthorized alteration or damage of computer data; receiving stolen property; and eavesdropping, on appeal Robert Charles Sudar charges that the trial court abused its discretion in admitting evidence relating to the "Hitman Online" document found on one of his computer hard drives. We affirm the judgment.
I. FACTUAL BACKGROUND
In June 2001 Beth Z., a personal trainer and Pilates instructor, resided in Corte Madera. She met appellant—whom she knew as Robert Starr—in early 2004 at a gym where she worked. They began dating in the summer of 2004. Appellant told her she was the first woman he spent time with in nine years, alluding to the death of his wife and two children. She gave him some leeway because of his past.
Appellant had a rental in San Anselmo and also spent time in Los Angeles and Las Vegas. The couple spent most of the time at Beth's apartment, and temporarily she would leave a key under her doormat so he could attend to a chore, such as feeding her cats, while she was gone.
Appellant told Beth he was a computer expert and trouble shooter. In December 2004 he gave her a complete personal computer system for her birthday. She gave him permission to set up the new computer system, but did not give him unattended access to her computer. Appellant set up new programs for Beth, transferred files from her old computer to the new one and installed antispyware and antivirus software. On one occasion Beth encountered problems with her computer and called appellant for help. He became frustrated, and the next thing she knew, he was remotely manipulating her computer. Regarding his actions as invasive and intrusive, Beth let appellant know how she felt and that she needed boundaries. Later, appellant responded by e-mail that he would never use remote access to help her again, and accused her of being hostile.
During their relationship appellant created an invoice that Beth might use in her Pilates business. They discussed making a video in which Beth would demonstrate a Pilates roller. He even wrote up a business plan and they registered a name for her business. However, Beth never agreed to allow appellant access to her home and computer to complete the roller promotional video. Further, she denied signing a six-page contract with appellant, notwithstanding that the document had a signature that looked like her signature. She also denied entering into a financial agreement with him whereby she received $5,000 a month for helping with the Pilates roller video.
In early 2005 appellant broke off communication, saying he had a change in his life work, was leaving town and not returning, and told Beth not to contact him. She e-mailed that she missed him, and wanted to see and hear from him. More e-mails followed in February 2005 along the same lines, with one on February 19 in which Beth said she would stop communicating and give him the space he wanted. By the summer of 2005, Beth "had had enough" and decided with certainty to end the relationship, although they had some interaction after that. Appellant had lied to her and her family, would show up at her home or other places uninvited, and tried to spend time with people she knew. He responded by calling her cell phone and home phone, leaving things on her porch, showing up where she worked uninvited, "and he did not stop." On August 22, 2005, appellant e-mailed that he never wanted her out of his life, followed by another e- mail two days later saying he could not throw away his love for her. That same day Beth e-mailed that she did not appreciate appellant "hanging around" her house "in a very surreptitious manner" after telling him she did not want to see him.
Nonetheless, consensual contact continued because Beth wanted to remain friends. She even thanked him for flowers and complimented him on a bike outfit she had seen him wearing. But, on September 6, 2005, she e-mailed for him to stay away, not to write or call, and indicating she was deleting all messages.
Beth began having problems with her computer in October 2005. She could not find many files on her computer and her photos, including photos of appellant, had disappeared as well. She also noticed things missing from her house, including her passport. Her face cream had a strange smell as well.
Over the weekend of October 14 and 15, 2005, Beth went out with a friend, Jasper Haines, only to discover upon arriving home and picking up her cell phone that its entire contents had been erased. The next day there was a message on her voice mail; she recognized appellant's voice. He said Haines's name in a way that frightened her. He indicated he witnessed her going out with Haines, but she had not told anyone about the dates. Beth reported the incident to the police, along with a description of appellant's vehicle. At that time the responding officer indicated there was not enough evidence to make a case against appellant, and advised her to obtain a restraining order. She began the process, but a restraining order was never served. Also in October 2005, Beth had her locks changed and hired computer expert Alan Chu to recover missing data from her computer.
At the end of October 24, 2005, Chu came to Beth's home. Checking her cell phone system, he discovered it could be accessed remotely using the same code Beth used for her computer. Checking the computer, he was unable to restore lost files, something he could have done had the files been accidentally deleted. Chu took the computer with him for further exploration and was able to recover some of the missing files. He discovered that the missing files had been destructively deleted; directory entries "weren't there," and some of the data he was able to recover was not in "good shape." Chu also installed antivirus and antispyware software, and a remote program through which he could assist Beth should she call for help. As well, on November 8, 2005, Chu programmed her wireless router to turn off the wireless access, resetting the password because the one she gave him did not work; in the process he reset the router to its factory default. At this point everything related to the computer "seemed relatively normal."
Chu explained that Beth did not need the wireless function and disabling it reduced the avenues through which someone could access her network or computer.
Nonetheless, two days later on November 10, 2005, Beth reported she could not access the Internet. Inspecting the computer, Chu discovered that the antivirus, antispyware and remote software programs were gone, and a different remote software program had been installed on November 9. The password they had selected two days previously did not permit Internet access and the wireless function had been turned back on. This change in the wireless router could only have occurred locally—someone would have to physically press the reset button. Chu suspected Beth's home was bugged and returned the next day to "sweep" her apartment, looking for wireless transmitters. He did not find any, but he did discover the source of a strange odor she had complained about— the lubricant WD-40 was emanating from the bottom of a potted plant. In addition, Chu discovered that one of her door locks could be breached, and suggested that he install a hidden camera to detect who was coming in her apartment; upon agreement he installed a wireless camera on November 19, 2005.
Meanwhile, Beth contacted the police a number of times to report appellant's presence near her condominium complex. One time he rode his bicycle right past the complex while she was driving out. Twice he was outside her apartment at night near some bushes.
On cross-examination Beth acknowledged that appellant occasionally rode his bike, and her street was a main route to his place of work.
All these happenings took their toll on Beth's professional and personal life. She lost track of records, missed appointments, and could not communicate with people. She advised some contacts that her e-mail was compromised. Beth was frightened and scared; she stayed with friends, and searched her home each time upon returning.
Officer Mark Reischel of the Twin Cities Police Department initiated an investigation of a claim Beth filed, arriving at her residence around 8:25 a.m. on November 22, 2005. He inspected her doors and windows and found nothing amiss. Beth pointed out the camera Chu had installed.
Camera footage captured video images of appellant inside Beth's home office later on that morning, around 11:05 a.m., while she was at an appointment. He was wearing surgical gloves, tampering with her computer and rifling through papers on her desk. She did not give him permission to be there.
Early the next evening, Chu waited in his car, outside Beth's apartment, hoping to catch the intruder. He saw someone matching the description of appellant approach the apartment and attempt to look inside for a couple minutes. The man left in a green Ford Escort; Chu followed and tried to obtain the number of the license plate. Eventually, he obtained the number and called it in to the police department.
Several days later Detective Toby Miller began his evening shift with a briefing that included still photos from Beth's video and a description of the Escort and license plate number. He spotted the Escort parked about 200 yards from Beth's residence. Someone matching appellant's description exited the car and walked across the street. Detective Miller located appellant crouched behind an approximately five-foot high utility box.
Appellant identified himself as Robert Sudar, and provided an expired Nevada driver's license. Searching the Escort, Detective Miller retrieved a backpack from the Escort and arrested appellant after Beth identified him. After appellant's arrest, Beth learned that his family members were not dead.
A search of the backpack revealed three cell phones; cameras; a PalmPilot; four digital voice recorders; computer-related electronic paraphernalia; items in the name of "Rob Starr"; a blank, uncut key; pictures of Beth; copies of their e-mails; a contact list of names, addresses and phone numbers belonging to Beth; and another list of names and addresses of Beth's relatives. From the car the police retrieved a box with 28 latex gloves, binoculars, a monocular, a flashlight and another cell phone.
Officer Reischel listened to the recordings from the digital recorders found in the backpack. There were recordings of normal conversations between Beth and others; recordings of voice mail messages from Beth to appellant; and a recording date stamped October 16, 2005, of Beth talking about a police report she had filed or a request she had made to the police department.
During the investigation, Officer Reischel also received 35 photographs from one Michelle Denauer, after having spoken with her by phone. These were photos of Beth that Beth had kept in a box in her home office. She did not give appellant permission to have the pictures.
At the time of trial William Bennett, an inspector with the Contra Costa County District Attorney's Office, was assigned to the Northern California Computer Crimes Task Force, and qualified as an expert in computer forensics. He received for examination all the hardware items seized from appellant's car. Bennett explained that he made a copy of the original evidence on a blank hard drive that had been wiped; he never worked off the original evidence. He searched for items identified in the search warrant having to do with Beth and the case at hand. During this process he bookmarked numerous items, including work-related e-mails to and from Beth; contact information documents belonging to her, as well as cell phone logs, an Internet service bill and her wireless account registration; a log of phone calls she made to Haines; a document detailing her real estate transactions from 1991; Beth's 2004 tax documents; insurance data and her Charles Schwab account information; and a document called "frequencies" reflecting law enforcement frequencies, including "Corte Madera Police Department 39.2400." Many of these items had an October or November 2005 last "access" date.
Defense
Gordon Pelton presented expert computer forensics testimony for the defense. Pelton stated that without examining Beth's computer, it would be impossible to determine that the files found on appellant's computer hardware actually came from her computer. Pelton also determined, based on his examination of Beth's computer, that there was zero file activity on her computer from September 12, 2005 through November 20, 2005. Further, he indicated that the term "destructive deletion," used by Chu, was not a term used by computer forensic professionals. To destroy data that was previously on a computer hard drive, one must intentionally "wipe" or "overwrite everything in [a] file on the hard drive." Wiping is an intentional action that requires the running of special software.
Appellant also produced several character references from persons who had worked with him in various capacities. Joyce Hayes had known appellant for 15 years and previously worked with him in the computer consulting business; she and her husband socialized with appellant outside of work. She attested to appellant's nonviolent, nonthreatening character. That appellant used the alias "Rob Starr" did not affect her opinion of his character. He did not act in any unusual way during October and November 2005.
Shu-yu Liu met appellant in 2002 when she asked him to fix her computer. Appellant house sat for her on occasion. He was "absolutely nonviolent." She never even heard him raise his voice. He did not act differently in October and November 2005. Several times appellant wore rubber gloves, maybe for some reason related to the computer.
In 1995, Sean O'Day and appellant were programmers together at the same company. O'Day described appellant as "one of the rare individuals that—I've never seen him actually blow his lid or get upset, scream, violent, anything like that," even when under pressure. Nor was appellant threatening in any physical way. Appellant used to perform under the name "Rob Star." Ralph Hooper, another colleague of appellant, testified in a similar vein. O'Day also noted that in October 2005, appellant mentioned that he wanted to avoid meeting Beth at the gym.
Appellant testified on his own behalf. He described his extensive background and career as a musician composing music and playing with bands. He was nicknamed "Bobby Starr" in high school and since then has used "Rob Starr" as a stage name. For the past couple decades, appellant has concentrated on computer programming work.
Appellant met Beth at the World Gym in Corte Madera in March 2004. They shared an interest in Pilates roller products and uses. Beth showed him a series of pictures of roller exercises, and expressed an interest in putting together a program. Appellant had an idea for a new roller product, and suggested they could collaborate. In August 2004 he proposed putting together a formal business plan. He charted out a task list which he gave to Beth.
Appellant and Beth signed an agreement on September 2, 2004; he was present when she signed it. Appellant was shown a document he asserted was the contract (but not the original), and testified that he recognized Beth's signature on it. The original had resided in her office, which he had access to until 2005. The gist of the agreement was that appellant would pay Beth to work on the project for two years; additionally, he provided a computer for her office. As well, since he was in Marin only Tuesdays through Thursdays, appellant would be able to use her office and, if he provided her a computer, he would have access to it and could maintain offsite backups of files that were generated.
On cross-examination appellant admitted that he told Beth's family that he gave the computer to her for her birthday. He could not remember when he turned his copy of the contract document over to the prosecutor, and denied that it occurred just a few days before jury selection. Contradicting this statement, the parties subsequently stipulated that defense counsel gave the contract document to the prosecutor on June 2, 2009, two days before the court heard in limine motions.
Appellant paid Beth $5,000 a month, in cash, for her work on the Pilates roller project, from September through December 2004, and February through July 2005. Beth "went through the roof" when he tried to pay her with a check, preferring that the income not show up in her checking account. Appellant said he prepared a spreadsheet reflecting the payments he made to her. The spreadsheet showed total payments of $47,500.
Appellant submitted the spreadsheet to the prosecutor for the first time when testifying.
For the initial months of September through December 2004, appellant spent Tuesday, Thursday and sometime Wednesday evenings at Beth's home, but never went there when she was gone. She left a key under the mat for him.
Appellant said he had a friendship and business relationship with Beth, but nothing more intimate. In August 2004 she "sexually attack[ed]" him while they were talking about the project. She "took advantage" of and "forced herself upon [him] so it became an awkward situation," but it was not like Beth "literally assaulted" him. One time in October, Beth punched appellant in the chest without warning; she would become enraged for no reason. E-mails in which he called her his lover, or mentioned love, were part of "a banter" that carried throughout their relationship.
In October 2004 appellant upgraded Beth's computer with new programs and in December he gave her a new computer system, suggesting that she convert to "DSL" for Internet access. Transferring her files to the new computer, he created a full backup of all her files, maintained a copy on a hard drive, and burned a CD of them. Appellant also set up an automatic offsite backup to a server he maintained and already paid for; it ran once a week. Offsite backup was something he routinely performed for clients; he told Beth he was doing this but she was uninterested in the details.
Appellant stopped paying Beth in January 2005 because he realized she was not working on the roller project; instead she was working on her own Pilates certification. He tried to end the relationship around this time. He received e-mails from Beth about missing him; some were just headings such as " 'Business partner? Great new idea re: Roller' "; " 'Brief sexual encounter' "; " 'Be my friend' "; and " 'Miss you.' " Beth offered to buy out his side of the project. However, in mid-February 2005, they "got back together in an agreement" and appellant began paying her again. In March appellant provided remote computer assistance to Beth with her computer problems, but she objected that she felt intruded upon and the process was invasive. Appellant e-mailed that he would stop using the program he installed to remotely access her computer.
In the summer of 2005 appellant took pictures of Beth's Triple A statement, Schwab account information and insurance information because Beth did not have a scanner. Appellant testified that as part of their business agreement, he had a right to inspect these kinds of documents to make sure she had proper insurance, and to review tax returns for compliance with the payments he made to her.
On cross-examination, appellant testified that Beth did not give him permission to download her tax documents.
Appellant quit paying Beth again at the end of July 2005. Appellant's e-mail to her saying he wanted lots of passionate sex was a sarcastic remark "to really indicate to her that I didn't want to have anything to do with working with her anymore." The rest of the message conveyed that he was not interested in continuing the business venture with her. He ended their relationship in the beginning of August 2005.
Trips they made to Hawaii and elsewhere were business trips to scout locations for the Pilates video. He did not recall sending Beth a letter after the Hawaii trip saying he loved her, and did not recall leaving roses on her doorstep, only buying wildflowers for her home.
Appellant visited Beth's aunt in New York, at the aunt's invitation, in August 2005. He was advising her about a new computer. Returning to Marin, Beth screamed at him and threatened to call the police. He was scared. His subsequent e-mail to her espousing his love for her and that he was crushed she did not want to see him, was just a way to diffuse her anger and rage.
Appellant also became concerned about a group with whom Beth regularly met with. She would not talk about it, nor would she talk about the origin of certain odd phrases she used such as "a hit," "[J]uice," and "[P]ast myself." He found a file on her computer called foresights.com/grouplist, printed the contact list and called a couple people on it, including Jasper Haines. Haines told him the group was religious in nature having to do with a female god and based on the writings of Shirley Luthman. Appellant said Luthman's book The Truth was outrageous, going from "government conspiracies to strange religious beliefs." Additionally, appellant came across something Beth had written that contained terms directly from The Truth, and found a document in one of her files praising Luthman and comparing her to a "gem shining." This and other documents led him to believe the group was a cult. Research on Shirley Luthman revealed real estate transactions involving Luthman, Beth and other members of the group.
Appellant also described a mid-October 2005 voice mail message, with Beth screaming that she would turn him in to the FBI, and ranting about bugging and hacking. Again, he was scared and stunned. He wrote her a note asking that she not take action against him because he was not causing her problems, and stated he was no longer working in Marin. In fact, appellant was still coming back and forth on a few projects. He also learned "after the fact" that she "filed a restraining order" against him. He filed a request for a reciprocal restraining order.
Around this time appellant moved Beth's backup files from his server onto his "local notebook" with duplicate backups maintained on two external hard drives. He was concerned about "issues occurring with her" so he decided to check the backups. He did not think about whether it was "okay" for him to "do that," nor was he thinking about their contract.
Around October 25, 2005, appellant suspected he was being followed by a red BMW and noted the license plate number. He learned the car belonged to Alan Chu. Chu's name appeared on some e-mails he had taken from Beth's backups. He was investigating why he was being followed; the search of backups was not related to their business contract. A background check revealed that Chu "had a criminal past" and "was a computer guy." He became concerned that Chu and Beth were "trying to do something against me." Chu followed him again in mid-November 2005.
Examining Beth's phone records over the Internet, appellant learned in early November that Beth had called the police department and a locksmith. He sought legal advice about his request for a restraining order, ascertaining that he needed to collect evidence to sustain his allegations. Thus he transferred calls from his cell phone to a digital recorder, and transferred audio files of Beth's to his computer and then to a digital recorder.
Appellant maintained he had been added to her cell phone plan and thus could legitimately access the account records.
Appellant decided to try to resolve things with Beth in person. On November 22, 2005, he went to her home around 11:00 a.m., thinking she would probably be there. He was not thinking about their business venture that day. The door was propped open; he rang the doorbell, called her name and knocked. When she didn't respond, he went to the back of the house looking for her because if she were in the bedroom or bathroom, she would not "hear the door or anything."
After 10 seconds, he turned to leave; glancing in her office he noticed that the D-link router he had set up was underneath the desk and there was another piece of equipment "just sitting there." With Beth's accusations of "bugging and hacking," and mindful of Chu's criminal background, he was concerned that "they were trying to do something against me . . . so I was curious." He entered and moved a chair to look at the piece of equipment; it was a Net Gear device. Appellant went to his car to get gloves before digging around the wiring, to stay clean and not cause sparks or disturb anything. Investigating, he noted that the D-link router was not connected to the computer. The Net Gear device was a combination router, firewall and switch. He wanted to find out if the device had been "put into use . . . towards implicating me in something." Her computer was off, he never turned it on, and did not download anything or reset the router. He left after waiting for her on the porch for 10-15 minutes.
On November 26, 2005, appellant returned to Marin from Los Angeles; he had his backpack, hard drives and other equipment with him which he was going to drop off at a client's office. He was intending to exit for the office, but was on the phone and accidentally pulled off on Lucky Drive. He parked and finished his phone call at around 7:30 p.m.; his phone records recorded a call at 7:29 p.m. He got out to "relieve" himself in the bushes. Shortly thereafter he was arrested.
Appellant testified that he kept the binoculars and monocle found in his car to use on boating trips with friends. He carried two external hard drives in brackets with client files on them, so he could plug them into his notebook computer and work on client files at any time. He used the digital recorders for meetings and verbal notes, and also saved voice mail messages from Beth on those devices. He had never seen, nor did he create, the "frequencies" document containing police scanner frequencies. The list of phone calls to Haines was part of his research into the Luthman group. Appellant had annotated lists of phone numbers Beth had called, and of people and places related to her as well as several pictures which she had given to him to scan. Appellant acknowledged having pieces of identification under the names of Robert Sudar and Robert Starr, with different birthdays. He explained this was "part of research" he was doing related to the Patriot Act and false identification and terrorism.
Appellant denied the following: calling Beth after her date with Haines; hanging around her residence; taking photos, papers or anything else from her home without consent; causing unauthorized alteration or damage to computer software or programs; eavesdropping on her conversations; and asking Ms. Denauer to throw away a bag of photos that included pictures of Beth and her family.
Appellant said he asked Denauer to throw away a bag of garbage he left at her house when he was housesitting. He also explained that he had taken some of the photos himself, and denied knowing Beth kept some in her storage unit.
II. DISCUSSION
Appellant insists that the trial court abused its discretion in admitting evidence concerning the contents and title of a "Hitman Online" document found on the hard drive of one of his computers. He contends the admission of that evidence violated state-law relevancy principles and Evidence Code section 352, and also amounted to a violation of his constitutional right to due process and a fair trial. We conclude no error occurred, and even if it did, any error was harmless under any standard. A. Background
All further statutory references are to the Evidence Code.
The document "Hitman Online" was found on appellant's hard drive and accessed around the time he made the unauthorized entry into appellant's home. It discussed topics such as how to pick locks and enter homes. Before trial, appellant moved to preclude introduction of this evidence. The prosecutor argued the evidence was highly relevant. Defense counsel countered that it was not relevant because it was a manifesto on how to commit and get away with murder, and there were no allegations of violence or threats of violence in this case. Further, assuming that the lock-picking portion had some relevance, the document was more prejudicial than probative. The court found it probative as to appellant's intent "in a case in which he's alleged to have been stalking somebody and then break into her home with latex gloves . . . . [¶] . . . [¶] . . . [O]ne who's downloading a manifesto on committing and getting away with a crime is relevant towards whether or not that person was planning a crime. . . . [¶] I understand that there's an explanation proffered by the defense as to the reason he had this, and that certainly may be a reasonable explanation for it; but I think that's a jury decision to make as opposed to [the] Court's decision. . . . [¶] The closeness in time to this being downloaded to the offense is certainly relevant to what Mr. Sudar may have been planning. I don't think it necessarily requires that he be planning a murder for it to have some relevance. There are things in here like surveillance, transporting your tools, getting the job done right. . . . [¶] It certainly is probative as to whether or not the defendant was planning to carry out the crime such as is charged here, and the prejudicial value does not outweigh that probative value."
At defense counsel's request to sanitize the document of elements such as those related to homicide, attempted murder, assault and the title itself, the court left it up to the prosecutor to pick the portions relevant to burglary, stalking, general breaking and entering, surveillance, etc. Further, rather than calling it "Hitman Online," witnesses should simply state a document downloaded from the Internet was found on appellant's hard drive containing those items.
Thereafter computer expert Bennett testified that one of the documents on appellant's hard drive discussed "how to pick locks," "how to conduct surveillance" and "wearing tight-fitting surgical gloves." The document was a Web page document located under "My Documents" in a folder called "Freedom." The last access date was November 21, 2005, at l:01:59 p.m.
The prosecutor asked appellant if he recalled downloading or accessing a document on November 21, 2005, containing instructions on surveillance, lock picking and wearing surgical gloves when entering a home uninvited. Appellant said no, but that prior to November 22, he did a lot of file clean up and moved things around. If the document were in the Freedom folder, he typically cleaned up that folder and moved things around. Following an off-the-record discussion between counsel and the court, and over defense objection, the prosecutor began asking appellant about the "Hitman Online" document, using that title. Appellant did not recall accessing it the day before he went to Beth's home on November 22, and did not recall downloading it.
Responding to additional questions about "Hitman Online" and his "Freedom" folder, appellant said he did not know that the document existed on his hard drive, and he had not read it. Further, the "Freedom" file was a collection of files "that I get information and e-mails from different people on congressional items and other items . . . , the Darwin Awards, things like that." On weekends he went through backups and transferred files "here and there," and most of the time was not looking at individual files. He never read the contents of the document in question. Defense counsel objected again, under section 352.
Denying the motion, the court elaborated that it was struck by the fact that appellant had an explanation for the file being accessed the day before he entered Beth's home. Professing an innocent explanation for entering her home, he apparently accessed the "Hitman Online" document the previous day, which told how to do some of the things he purportedly did, yet he denied seeing the document. When the prosecutor pointed out that the document had been accessed by someone using his computer the day before he entered Beth's home, he explained he likely was cleaning and moving files that day. The court stated: "And that explanation is drawn into question when you look at the file name here, that is Hitman Online. [¶] If the defendant truly was cleaning out his Freedom folder the day before he entered the victim's house, one would think he would recognize a file called Hitman Online, and the probative value of the name of that file is highly increased based on the defendant's explanation for how that could have been accessed the day before . . . . And it seemed to me to be unfair to allow the defendant to have that explanation without explaining how that can be, in light of the name of the file."
Later, referring to selected portions of "Hitman Online" concerning shipping and routing, assuming an identity and basic accessories, appellant denied reading the document at all. Similar questioning ensued concerning other aspects of Hitman Online, over defense objection, with appellant repeating that he never read it, but admitting to engaging in behaviors that were captured therein and reported therein, e.g., wearing surgical gloves; wearing dark clothing; sitting alone in his car outside Beth's residence with binoculars in the car; using alternative identification, and using voice-activated microcassette recorders.
On redirect examination appellant testified that a friend sent him "Hitman Online." They were "going back and forth on issues with the Patriot Act, and he sent a lot of things, some crazy, some funny." He just dumped that particular document in a directory, like he would normally do, thinking the title was interesting, but not thinking "anything of it." He denied being an aspiring hit man or owning lock picks or weapons. B. The Trial Court Correctly Admitted the Contents of "Hitman Online"
Stuart Miller testified that he had known appellant for 16 years, and was the person who sent him the article "Hitman Online." He explained its origin this way: "[E]very year the Darwin Awards are issued, and that's where someone takes themselves out of the gene pool in an incredible manner, and in the instant case of the Hitman Online somebody had gone to get a hitman on-line. The hitman killed him instead of his intended victim."
Only relevant evidence is admissible, and relevant evidence is defined as evidence "having any tendency in reason" to establish any material fact of consequence to the case. (§§ 210, 350.) "Evidence is relevant if it tends „ "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' " (People v. Williams (2008) 43 Cal.4th 584, 633-634.) We review the trial court's evidentiary rulings for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 120.) Section 352 gives the court broad discretion to decide whether the prejudicial effect of proffered evidence substantially outweighs its probative value. (People v. Michaels (2002) 28 Cal.4th 486, 532.) "Prejudicial," in section 352 parlance, refers to evidence which uniquely tends to evoke emotional bias against the defendant as a person, and has little impact on the issues. In other words, "prejudicial" is not the same thing as "damaging." (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Appellant first maintains that the content of "Hitman Online" was irrelevant and thus it was error to admit it. The evidence was highly pertinent to prove the intent element of burglary, specifically that appellant entered Beth's home not with an innocent purpose but with the intent of committing theft, stalking, or unauthorized alteration or deletion of computer data. The proffered document was a manual with sections on surveillance, picking locks, tool transportation, clothes to wear when committing crime, etc., all of which had a tendency in reason to prove appellant committed burglary. And, contrary to appellant's assertion, the probative value of the evidence was not substantially outweighed by its prejudicial effect. The content of "Hitman Online" was not unduly prejudicial within the meaning of the statute because it did not uniquely tend to evoke an emotional response against appellant as an individual, with little effect on the issues. (People v. Bolin, supra, 18 Cal.4th at p. 320.)
Appellant attempts to downplay the relevance of the document, arguing that the advice it sets forth is "so obvious and pedestrian," "so generic," that its probative value was minimal. However basic the advice, there was solid, substantial evidence that appellant had accessed the manual the night before he entered Beth's home, and that many of his actions tracked the advice reflected in the manual. It is common knowledge that people resort to basic "how to" guidebooks as a matter of course; just witness the growing list of instructional reference books on a wealth of topics "For Dummies" that are on the market today. (Visit <http://www.dummies.com/store.html>) C. The Trial Court Did Not Err in Allowing Reference to the Title "Hitman Online"
On a related note, appellant argues that the trial court abused its discretion when it changed its mind and allowed the prosecutor to state the title of the manual, "Hitman Online." And, even if the title did become relevant at that time, its probative value was easily outweighed by its "obvious" prejudicial effect.
The title became relevant on the issue of credibility, because appellant insisted that he had not read the document, but rather unwittingly and unknowingly accessed it when cleaning and moving around items in the Freedom folder on November 21, 2005. In essence the trial court concluded that the distinctive nature of the title would be hard to overlook or ignore, and the People should be able to argue that appellant's explanation was not credible.
In arguing prejudicial effect, appellant maintains that the word "Hitman" connotes a willingness to do violence and the immediate assumption would be that the person using that resource "is contemplating a life of crime as a 'fixer' for the mob." This goes too far. First, the contents of the manual was the primary focus of the prosecutor's questioning. Second, there is nothing remotely connected in this case to "the mob," let alone violence, and hence the jury would make no such assumption. We are talking about a 56-year-old man (at the time of trial) who was a computer expert or at least an aspiring computer expert, not an aspiring mobster. Third, the court instructed the jury to decide the case based on the evidence, not on such things as prejudice. Fourth, the prosecutor never argued the impermissible insinuations.
In any event, any error in admitting the use of the title "Hitman" was harmless under any standard, and did not deny appellant a fair trial or violate his due process rights. The evidence of appellant's guilt was overwhelming. Appellant took the stand and presented an elaborate defense in which he denied all charges and provided belabored, innocent explanations for such actions as his presence in Beth's home on November 22, 2005, and his possession of audio recordings of her private conversations. The jury rejected appellant's defense because it was, on the whole, implausible, not because he had access to a document called "Hitman Online."
After the verdicts were in and upon discussing the possibility of remand, the court alluded to appellant's "blatant, blatant lies on several issues" that were "appalling and manipulative." At sentencing, the court called his testimony "profoundly unbelievable, foolish in parts."
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Appellant relies on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385 for the proposition that the admission of relevant but emotionally charged evidence violates federal due process guarantees. The key difference between McKinney and the instant case is that in McKinney, the reviewing court concluded that only impermissible inferences could be drawn from much of the disputed evidence and thus it was irrelevant. (Id. at pp. 1383-1385.) In contrast, here the distinctiveness of the "Hitman Online" title had a tendency in reason to discredit appellant's testimony that he never read the document and unknowingly accessed it.
III. DISPOSITION
The judgment is affirmed.
Reardon, J. We concur: Ruvolo, P.J. Sepulveda, J.