Opinion
H023208.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHN MYRON WEAVER, Defendant and Appellant.
Defendant was convicted by jury trial of nine counts of committing a lewd or lascivious act on a 14-year-old child (Pen. Code, § 288, subd. (c)(1)) and one count of annoying or molesting a minor (Pen. Code, § 647.6). He was committed to state prison. On appeal, he challenges (1) the admission of prior act evidence, (2) the jury instructions on that evidence, (3) the denial of his motion to suppress evidence found on his computers hard disk drive after the hard disk drive was seized pursuant to a search warrant and (4) the admission of evidence (found on the hard disk drive) that he used certain Internet search terms to find and then visit certain
websites containing sexually-oriented material related to teenage boys. We reject his contentions and affirm the judgment.
I. Procedural Background
Defendants suppression motion and his evidentiary issues were primarily resolved in limine. Hence, consideration of the entire voluminous trial record is not necessary to determine whether the trial courts rulings on these issues were erroneous. Since the trial court instructed the jury with a standard CALJIC instruction that has now been unambiguously upheld by the California Supreme Court, the resolution of that issue also does not require consideration of the trial record. We therefore omit a discussion of the facts proved at trial.
Defendant was charged by information with ten counts of committing a lewd or lascivious act on a 14-year-old child (Pen. Code, § 288, subd. (c)(1)) and one count of annoying or molesting a minor (Pen. Code, § 647.6, subd. (a)). The Penal Code section 288, subdivision (c)(1) counts involved four different 14-year-old victims. The Penal Code section 647.6, subdivision (a) count involved a 17-year-old victim. All the counts were alleged to have occurred in 1997, 1999 and 2000.
Defendant was charged with three counts involving Victim # 1, three counts involving Victim # 2, two counts involving Victim # 3 and two counts involving Victim # 4.
The jury returned guilty verdicts on nine of the ten lewd act counts and the Penal Code section 647.6, subdivision (a) count. It acquitted defendant of the one remaining count. The court imposed the maximum possible term of eight years and four months in state prison. Defendant filed a timely notice of appeal.
II. Discussion
A. Admission of Prior Act Evidence
Defendant claims that the trial courts admission of prior act evidence under Evidence Code section 1108 violated his right to due process and constituted an abuse of discretion under Evidence Code section 352.
1. Background
In 1968 and 1969, defendant befriended 15-year-old Charles M. through a religious group for high school boys led by defendant. Defendant invited Charles to his home multiple times, spoke to him about masturbation and sexuality and later began touching Charles on his stomach and legs. Defendant twice persuaded Charles to come into defendants bedroom where he masturbated Charles. On one of those occasions, defendant also put Charless hand on defendants penis.
Defendant also befriended Charless 14-year-old brother William M. through the same religious group. On three occasions, defendant touched Williams genitals at defendants home. On the first occasion, defendant told William "how attracted he was to William" and then stuck his hands down Williams pants and grabbed his genitals. The next time, defendant led William into defendants bedroom, removed Williams pants and masturbated William. The third time, defendant again led William into the bedroom, removed Williams pants and touched Williams penis with his hand.
In 1994 or 1995, defendant introduced himself to 14-year-old Donovan S. Defendant told Donovan that he was a basketball coach who could help Donovan get a college basketball scholarship. Donovan saw defendant frequently at the gym where Donovan played basketball. Defendant "was always asking for hugs when he saw Donovan." Eventually defendant began giving Donovan a ride home from the gym. Then defendant began telephoning Donovan at home at night. Defendant would ask Donovan "whether he masturbated and how often," what he "fantasized about, whether he was in bed, and what he was wearing."
Donovan did not know Charles or William, and none of the three boys knew any of the victims of the charged offenses. No charges were filed in connection with defendants conduct with Charles, William and Donovan.
Defendants attorney filed an in limine motion asking the trial court to exclude evidence of defendants conduct with Charles, William and Donovan on due process grounds and under Evidence Code section 352. His written motion made no argument dependent on the facts of the prior acts or the facts of the current charges but was confined to a purely legal argument. The prosecution sought admission of the prior act evidence under Evidence Code sections 1101, subdivision (b) and 1108. The prosecutor noted the high degree of similarity between these prior acts and the current offenses. Most of the charged offenses involved situations where defendant befriended a 14-year-old boy, repeatedly invited the boy to his home, talked to the boy about sexual matters, repeatedly hugged the boy and touched or attempted to touch the boys genitals. Several of the charged counts arose from incidents during which defendant ultimately led the boy to his bedroom where defendant masturbated or attempted to masturbate the boy.
Defendant was represented by retained counsel at trial. The same attorney represents him on appeal.
He also sought exclusion of other evidence, but the other evidence was either excluded or is not a subject of his appellate contention. The in limine motion was resolved based on the prosecutors offer of proof in his written opposition to defendants in limine motion. Defendants attorney did not seek an evidentiary hearing.
Defendants attorneys primary argument at the hearing on the in limine motion was that the prior acts were "so old" that they should not be admitted. The prosecutor argued that the priors were such a "close match" to the charged conduct that they showed a modus operandi. He argued that the probative value of this modus operandi evidence outweighed the remoteness of the priors. The court explicitly found that the priors were "highly probative" and that their probative value outweighed any prejudice from their remoteness or from the absence of criminal convictions for the prior acts.
2. Analysis
Defendant claims that the admission of the prior act evidence under Evidence Code section 1108 to show propensity violates due process. In People v. Falsetta (1999) 21 Cal.4th 903, 986 P.2d 182, the California Supreme Court upheld Evidence Code section 1108 against a due process challenge. (Falsetta at p. 922.) We are bound to respect this ruling and reject defendants due process challenge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.) Defendant argues, however, that Falsetta merely upheld Evidence Code section 1108 against a facial challenge, and he is making an "as applied" challenge. The difficulty with this assertion is that defendants written motion did not state an "as applied" due process challenge, and defendants attorney did not assert such a challenge at the hearing on the motion. "It is, of course, the general rule-to which we find no exception here-that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." (People v. Alvarez (1996) 14 Cal.4th 155, 186, 926 P.2d 365, emphasis added, internal quotation marks omitted; Evid. Code, § 353.)
Defendants due process objection was argued below solely on the face of the law, rather than based on its application to defendant. And at the hearing on his objection, he argued only the Evidence Code section 352 issue. An as-applied challenge "contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 892 P.2d 1145, emphasis added.) Because defendants due process objection below did not analyze the particular facts and circumstances of the application of Evidence Code section 1108 to his case, he failed to preserve an as-applied due process challenge for appellate review.
Defendants remaining contention is that the trial court abused its discretion under Evidence Code section 352 in admitting the prior act evidence. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We may not disturb the trial courts ruling unless its ruling was "arbitrary, whimsical, or capricious as a matter of law" so as to constitute an abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282, citation and quotation marks omitted.)
In People v. Ewoldt (1994) 7 Cal.4th 380, 867 P.2d 757, the California Supreme Court detailed the considerations that should be taken into account by a trial court in evaluating whether evidence of prior acts should be excluded under Evidence Code section 352. The probative value of the prior act evidence depends both on its degree of relevance to a disputed issue and its independence from the evidence of the charged offenses. (Ewoldt at p. 404.) The court should consider whether the testimony about the prior acts is stronger or more inflammatory than the testimony about the charged offenses. (Ewoldt at p. 405.) The absence of criminal convictions for the prior acts may be prejudicial, but the weight of this circumstance must be weighed against the other circumstances. (Ewoldt at p. 405.) Similarities between prior and current acts may balance out the remoteness of the prior acts. (People v. Waples (2000) 79 Cal.App.4th 1389, 1395.)
The prior acts that the prosecution sought to admit were completely independent from the evidence of the charged offenses. Charles and William did not know anything about the acts against Donovan or the current victims and Donovan did not know anything about the acts against Charles and William or the current victims. This independence enhanced the probative value of the prior acts. In addition, the defense had already disclosed in its in limine motions that it intended to assert at trial that three of the current victims "manufactured the allegations of molest to avoid responsibility for the burglaries, thefts, and credit card forgeries" that they had allegedly committed against defendant. Allegations that the current victims had fabricated the molestations rendered the prior act evidence all the more relevant. Evidence of the prior acts was not more inflammatory or stronger than the evidence of the current offenses, and the prior and current acts were distinctively similar. The strong probative value of the prior acts evidence easily outweighed the potential prejudice from the remoteness of the prior acts and the absence of criminal convictions for the prior acts. On this record, the trial court did not abuse its discretion in determining that the probative value was not substantially outweighed by the potential for undue prejudice.
B. Instructions
The jury was instructed with the 2000 revised version of CALJIC 2.50.01. In People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court upheld the validity of the 1999 version of this instruction against a challenge similar to the one that defendant asserts here. The differences between the 1999 and 2000 versions of the instruction are not material to defendants contentions. Thus, we must reject defendants challenge to the validity of the instruction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
Defendant asserts in his brief that "the 2000 version of the instruction repeats the same language which created an ambiguity in the 1999 revision."
C. Suppression Motion
Defendant maintains that the trial court prejudicially erred in denying his motion seeking to suppress evidence found on his computers hard drive after the hard drive was seized pursuant to a search warrant.
1. Background
The search warrant affidavit stated that one of the victims had told the officer that defendant had invited him to play on his computer and that the victim had used the computer to "visit sites which showed explicit sexual material including one entitled slut.com." The warrant explicitly authorized the seizure of: "any computer equipment including but not limited to . . . hard disc [sic] drives" and "any and all documentation and records, whether on paper or stored on magnetic media (including information stored within a computer), disclosing, describing, referring, reflecting, or adverting to pornographic images . . . ."
The execution of the warrant resulted in the seizure from defendants home of defendants "computer CPU" containing his hard disk drive. The contents of defendants hard disk drive were duplicated by the police onto a set of compact disks. A police officer subsequently used "Internet History Viewer" software to "view the various files that [had been] created" on defendants hard disk drive when defendants computer had been used to view a website. This "readily available" software, which was a "free download from the internet," "recovered information that would not otherwise have been recoverable off of the hard drive [or the CD copies of it] . . . without the use of that software tool." These files provided the police officer with "Internet addresses of various web sites" and "dates and times of the web site access." The officer "located sites that appeared to be porn related" and made "a print out" of the information about the access made to these websites. This print out showed that the computer had been used to access websites with sexual content related to teenaged boys in May and June of 1999. The files on defendants hard disk drive also contained "search terms" that had been used to "get to" those websites, and "images" that had been stored on the hard disk drive from those websites.
Defendants attorney filed a suppression motion seeking exclusion of this information about website access and search terms. He asserted that, although the computers hard disk drive had been properly seized pursuant to a valid search warrant, the subsequent use of a "special program designed to read hard drive information" was a new search that exceeded the scope of the warrant and required a new search warrant. He argued that the warrant authorized the police to "attempt to read" the contents of the hard disk drive, but did not permit the police to "play safe cracker" by using a software tool to assist in this attempt. He claimed that the use of this software invaded defendants privacy. The prosecution responded to the suppression motion by noting that the hard disk drive and the information it contained had been specifically described in the warrant. The court denied the suppression motion.
2. Analysis
Defendant claims that the use of this software tool to extract information from the hard disk drive was "a search which exceeded the scope of the warrant" because the warrant did not particularly describe "files which had been specifically deleted" as within the scope of the warrant.
"Whether the description in a warrant of property to be seized is sufficiently definite is a question of law subject to independent review by the appellate court." (People v. Kraft (2000) 23 Cal.4th 978, 1041.) In this case, the warrant specifically described both the hard disk drive and "any and all documentation and records . . . (including information stored within a computer), disclosing, describing, referring, reflecting, or adverting to pornographic images . . . ." The information extracted from defendants hard disk drive was clearly information "stored within a computer" related to pornographic images. Thus, on its face, it came within the specific description in the warrant of the property to be seized.
Nevertheless, defendant claims that the information extracted by the police from his hard disk drive was not within the scope of the warrant because this information was "computer trash" that had "not been saved" but "deleted" and "overwritten" by other information, and the warrant neglected to mention such information. Defendants contention is not supported by the record upon which his motion to suppress was decided. All that the record adduced in support of his motion reflects is that the software used by the police permitted them to recover "information that would not otherwise have been recoverable off of the hard drive." It does not show that this information was "deleted" "trash" that had "not been saved" and had been "overwritten" by other information. As far as can be gleaned from the record made by defendant in support of his motion, the "information" on defendants hard disk drive was easily accessed by the use of a free, readily-available software program.
At trial, the police officer who had retrieved this information from the hard drive testified that, before using the Internet History Viewer program, he had used a program "called Unerase" to recover "deleted files" from the hard drive. He also testified that he could have used, but did not use, programs that had the ability to recover unsaved or overwritten files from a hard drive. He did not testify that the website and search term information had been retrieved using the "Unerase" program. Defendant did not renew his suppression motion after this testimony.
The mere use of a software tool to extract information explicitly sought by the warrant did not exceed the scope of the warrant. In fact, defendants argument would preclude the testing or analysis of any evidence after its seizure pursuant to a warrant unless the warrant specifically itemized in advance each type of testing to which any of the sought-after evidence might be subjected. Defendant does not cite, and we are not aware of, any authority for that proposition. His claim that the use of the software tool on the seized hard disk drive was akin to "opening a separate container" is not apt. The warrant did not merely seek the hard disk drive but also specifically sought a specific type of "information stored within the computer." There is no "separate container" within the "information" that the warrant authorized the police to seize. Defendants contention lacks merit.
For instance, a warrant seeking a handgun would have to specify every type of test (fingerprints, ballistics testing, residue analysis, etc.) to which it might be subjected. The warrant requirement does not extend to examination of evidence after its proper seizure pursuant to a warrant.
D. Information Extracted From Defendants Computer
Defendant asserts that the trial court abused its discretion in admitting testimony about defendants website visits and Internet searches over his Evidence Code section 352 objection.
1. Background
The defense made an in limine motion seeking exclusion of the "contents of the defendants hard drive showing visits to gay/teen web sites" on the ground that this evidence was "irrelevant" and "highly prejudicial" evidence. The prosecutor argued that evidence of defendants visits to these websites was "strong evidence that he had the requisite intent to gratify his own sexual desires in his encounters with [the victims]." "It is being offered to show that what happened to the charged victims in this case was intentional acts by the defendant, was not a mistaken touching of their genitals, but was an intentional touching of their genitals, and that that intent can be shown by that sexual intent, which is an element that the People have to prove, that can be shown by the sexual desires of the defendant. And the sexual desires of the defendant can be shown by what kinds of pornography he is interested in viewing."
The court ruled that evidence of website visits would only be permitted if it was "absolutely clear" that "defendant was accessing information having to do with the topic of sex with under aged males." The court also ruled that the evidence would be admitted only if it could be "linked to the defendant," and it was "absolutely clear that what was accessed was a subject relating to sexual molestation of . . . male minors . . . ."
At trial, defendant renewed his Evidence Code section 352 objection to the admission of this evidence. The prosecutor reiterated that the evidence was highly relevant to show defendants "sexual intent in his touchings of these boys . . . ." He asserted that evidence of the website visits and the Internet search terms used to find those websites "shows a sexual intent on the part of the defendant towards teenage boys, which is really at the heart of this case." "[A] person who is interested in looking at sexually explicit images and describes the interest as boy+male+teen is someone who has a sexual intent towards teenage boys." The court found that this evidence was "clearly relevant" to "demonstrate circumstantially that the defendant had an interest [in] sex with under aged boys." It excluded the documents containing images and listings of all of the website visits and search terms, but it ruled that the police officer could testify about his interpretation of the information he had found on defendants hard disk drive.
The police officer gave fairly brief testimony about the content of the information he had retrieved from defendants hard disk drive. He testified that the search terms "gay+male+teens" and "gay+male+teen+sex" had been used on defendants computer to locate websites. Defendants computer had accessed websites called "orgyboys.com," "teencocks.com" and "teenboyz2000.com." The police officer also testified that he had found "images in addition to" the list of websites visited, but defendants trial counsel objected, and no further testimony was given describing these "images." No further evidence of the contents of defendants hard disk drive was admitted at trial.
2. Analysis
As we noted earlier, an appellate court will not easily find that a trial court has abused its discretion under Evidence Code section 352. An abuse of discretion will be found only if the trial courts conclusion that the probative value of the evidence was not substantially outweighed by the probability of undue prejudice was "arbitrary, whimsical, or capricious as a matter of law." (Branch,supra, at p. 282; Evid. Code, § 352.) The evidence admitted by the trial court was highly probative of defendants sexual intent toward teenage boys. This intent was a critical element of the charged offenses. Hence, the probative value of this evidence was quite high. The trial court imposed strict limits on the evidence that it permitted the prosecution to adduce in order to avoid the risk of any undue prejudice. Its decision could not remotely be found arbitrary or capricious. We find no abuse of discretion.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., and Wunderlich, J.