Opinion
A156470
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. CHARLES WAYNE UBER, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1505066) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) --------
This appeal is from the trial court's determination that defendant Charles Wayne Uber, Jr. violated the terms of his probation by possessing or having in his custody sexually explicit material and accessing pornographic or sexually related Web sites. For this violation, the trial court revoked Uber's probation and sentenced him to a six-year term in prison. Uber now argues that the evidence supporting the probation violation finding was insufficient. We disagree and will affirm.
I.
Uber originally pled guilty to a lewd or lascivious act upon a child on May 24, 2016. He was sentenced to probation for five years, subject to a variety of conditions, such as avoiding the use of controlled substances and registering as a sex offender. In the years following his conviction, Uber found himself in and out of prison for violating his probation conditions. Between the date of the conviction and July 3, 2018, the date of the arrest that led to this appeal, Uber violated the terms of his probation three times in two years. He earned two short stints in prison and even more conditions on his probation for his errant conduct.
The circumstances leading up to the violation at issue here center on a meeting between Uber and his probation officer, Emily Mendes, on July 3, 2018. As part of his probation, Uber was prohibited from either (1) possessing or having in his custody sexually explicit material or (2) accessing pornographic or sexually-related Web sites. But at the meeting, Officer Mendes inspected Uber's cell phone and found 20 to 30 sexually explicit images saved to the device. Uber started to cry as Officer Mendes searched through the phone. He was then arrested, and the phone was confiscated for further forensic analysis.
The forensic analyst in charge of Uber's case was Investigator Martin Perrone, an expert in analysis of electronic devices. His analysis indicated that Uber's phone was used on four different occasions—October 24, 2017, November 16, 2017, May 14, 2018, and June 14, 2018—to access pornography sites or search for pornographic material online. These instances ranged from general searches for pornographic material to specific searches for both animated pornography and porn actresses. While Investigator Perrone was not able to conclusively determine that Uber himself was the one who had made the searches or downloaded the images, he did conclude that Uber's email account was linked to the phone during those dates.
At trial, the central question was who exactly possessed the phone when it was used to search for the sexually explicit material. Uber testified that he had obtained and started using the phone "a little after Thanksgiving" in 2017; before that, he claimed, his brother had the phone. Uber's father, Charles Wayne Uber, Sr., also testified that after his own release from prison on May 27, 2018, he had occasionally borrowed his son's phone and used it to search for pornography online.
According to Uber, these facts cast doubt on the October 24, 2017, November 16, 2017, and June 14, 2018 search instances, as well as the discovery of the images on Uber's phone, as it was possible that his family members were the ones who accessed or downloaded the material. And for the remaining instance, an Internet search that took place on May 14, 2018, Uber argued that the prosecution failed to prove that the search was calculated to yield any sexually explicit results.
The trial court considered all the above evidence and concluded that the People had met its burden of showing a probation violation. Even if Uber did not access the material himself, the court found it hard to believe that he had the phone for so long without ever knowing that the photos were saved on it. This violation, combined with both Uber's past probation violations and general recidivism and unwillingness to participate in his own rehabilitation, led the trial court to deny Uber's request for the reinstatement of his probation and impose a six-year prison term on him.
This appeal followed.
II.
The sole ground for appeal here is a sufficiency of the evidence challenge to the trial court's finding of a probation violation.
Both parties recognize that the trial court's findings of fact are reviewed for substantial evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, citing Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888; People v. Kurey (2001) 88 Cal.App.4th 840, 848.) Under that standard, our task begins and ends with whether there is evidence that may be considered "reasonable, credible, and of solid value" from which a reasonable trier of fact could make the requisite finding of a violation. (People v. Covarrubias (2016) 1 Cal.5th 838, 890; Kurey, supra, 88 Cal.App.4th at 848.)
The substantial evidence standard is easily met here. Uber's phone was found to have been used on various occasions to access sexually explicit material and there was ample circumstantial evidence that he knew it.
From October of 2017 to June of 2018, there were four separate instances in which Investigator Perrone found evidence of the phone's user accessing sexually explicit material online. During this time period, Uber was the owner of the phone, as evidenced by his email address being linked to it. Furthermore, Officer Mendes testified to finding 20 to 30 explicit images saved on Uber's phone during a probation meeting. That makes five instances of Uber's phone being used to access sexually explicit material over the course of less than a year. Even giving some credence to Uber's argument that these searches and downloads were made by others, that does not address the fact that these images were indisputably on his phone for an extended period of time. The trial court was entitled to disbelieve his protestations of unawareness that they were there. We therefore conclude the evidence is sufficient to support the finding that Uber violated his probation.
III.
The trial court's ruling is affirmed.
STREETER, J. WE CONCUR: POLLAK, P.J.
BROWN, J.