Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD165314, Gale E. Kaneshiro, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Paul Gordon Whitmore guilty of 21 counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)) (counts 1, 9, 10, 11, 14, 15, 16, 17, 18, 24, 29, 33, 36, 37, 38, 43, 44, 46, 48, 49, 50), nine counts of aggravated sexual assault of a child (§ 269) (counts 2, 3, 4, 5, 6, 34, 39, 45), 18 counts of posing a minor for the purpose of producing pornography (§ 311.4, subd. (b)) (counts 7, 8, 13, 20, 21, 22, 23, 25, 26, 27, 30, 31, 32, 35, 40, 41, 42, 55), and one count each of exhibiting harmful matter to a minor (§ 288.2, subd. (b)) (count 51), annoying or molesting a child (§ 647.6, subd. (a)) (count 52), and attempting to dissuade a witness from reporting a crime (§ 136, subd. (b)(1)) (count 54). With respect to the lewd acts charged in counts 1, 9, 10, 33, and 37, the jury also found that Whitmore tied or bound his victim and committed offenses described in the One Strike law (§ 667.61, subd. (c)) against more than one victim, within the meaning of section 667.61, subdivisions (a), (c), and (e). As to the remainder of the lewd act counts, the jury found that Whitmore committed an offense described in the One Strike law (§ 667.61, subd. (c)), against more than one victim, within the meaning of section 667.61, subdivisions (b), (c), and (e). The trial court sentenced Whitmore to 467 years 8 months to life in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Whitmore raises various claims pertaining to the admissibility of various pieces of evidence. In addition, Whitmore challenges the sufficiency of the evidence as to some of the child pornography counts, one of the aggravated sexual assault counts, and as to all of the One Strike true findings of tying or binding. Whitmore also contends that the trial court erred in failing to provide a unanimity instruction as to the child pornography and lewd act counts, and that the court erred in the manner in which it instructed the jury regarding the One Strike tying or binding allegations. Further, Whitmore claims that the trial court failed to provide proper verdict forms concerning the One Strike allegations, and erred in allowing the jury to return multiple victim findings prior to the recording of the jury's verdicts on the underlying offenses. In addition, Whitmore maintains that the court erred in providing the jurors with two "worksheets" for the purpose of keeping track of their verdicts. Whitmore also claims that the court erred in denying his motion to sever. Finally, he contends that the cumulative error doctrine requires reversal of the judgment.
We affirm the judgment.
II.
We provide only a summary of the evidence presented at trial. Our summary is intended to provide a sufficient background for consideration of Whitmore's claims on appeal, rather than to provide an exhaustive list of all of the evidence presented at trial.
In November 2001, Danish police searched the home of Eggert and Bente Jensen in Tram, Denmark. Police discovered a computer in the Jensens' home, which police later determined had large amounts of child pornography on the hard drive. Included among the videos and photographs found on the Jensens' computer were images of Whitmore engaged in sexual activities with Whitmore's daughter, M.W. A forensic analysis of the computer revealed computer chats between Whitmore and the Jensens. In the chats, Whitmore described, in graphic detail, the ways in which he had molested M.W. as well as other victims. Danish police compiled evidence discovered on the Jensens' computer pertaining to Whitmore and provided it to U.S. law enforcement officials.
In January 2002, San Diego police arrested Whitmore. During a search of Whitmore's home, police discovered additional child pornography on Whitmore's computers, and on other devices used for storing digital information. Police also discovered child pornography produced by Whitmore during a search of the home of Whitmore's friend, Lloyd Emerson.
Police estimated that the devices contained more than 900 pictures and more than 200 videos of minors under the age of 18 involved in sexual conduct.
In the Fall of 2005, over the course of a lengthy trial, the People introduced in evidence numerous videos and photographs containing child pornography that Whitmore had produced. Included among this evidence were videos depicting Whitmore having anal and oral sex with M.W. Numerous other photographs and videos depicted Whitmore engaged in various other forms of sexual conduct with M.W., as well as with other victims. M.W. and victims T.M and C.S. testified regarding the molestations. Victim K.W. testified that Whitmore took pictures of her and M.W. in the bathtub together.
III.
DISCUSSION
A. The trial court did not violate Whitmore's federal constitutional right to confront and cross-examine witnesses
Whitmore claims that the trial court violated his federal constitutional right to confront and cross-examine witnesses by admitting hearsay statements that the Jensens made during various computer chats with Whitmore. Specifically, Whitmore maintains that the trial court erred in admitting the statements because the People failed to demonstrate that the Jensens were unavailable to testify at trial.
Although Whitmore notes that the California Constitution also provides defendants with the right to confront and cross-examine witnesses, his legal argument focuses solely on the Confrontation Clause of the Sixth Amendment to the United States Constitution. We therefore restrict our analysis to Whitmore's claim that admission of the Jensens' statements violated his federal constitutional right to confront and cross-examine witnesses.
We need not determine whether the Jensens were unavailable to testify because Whitmore has not demonstrated that any of the statements attributed to the Jensens constitute testimonial hearsay subject to the Confrontation Clause.
1. Factual and procedural background
The People presented in evidence a transcript of various computer chats that Whitmore conducted with Eggert and Bente Jensen. The chats were generated using a computer chat program called "ICQ," which is shorthand for "I seek you." Among the topics discussed in the chats were Whitmore's sexual molestation of his daughter and the Jensens' sexual molestation of their daughter.
2. Governing law
The Sixth Amendment's Confrontation Clause provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington (2004)541 U.S. 36, 53-54 (Crawford), the United States Supreme Court held that the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Italics added.) The Crawford court implied that the Sixth Amendment does not bar the admission of non testimonial hearsay:
"[N]ot all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them.
"The text of the Confrontation Clause reflects this focus. It applies to 'witnesses' against the accused ─ in other words, those who 'bear testimony.' [Citation.] 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement." (Crawford, supra, 541 U.S. at p. 51.)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the court addressed whether statements made to law enforcement personnel during a 911 call and at a crime scene, in two different cases, were testimonial, and thus subject to the requirements of the Sixth Amendment's Confrontation Clause. The Davis court began its analysis by clarifying that "the Confrontation Clause applies only to testimonial hearsay." (Davis, supra, 547 U.S. at p. 823; see also id. at p. 821 ["It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause"].) The court in Davis thus expressly held that which it had suggested in Crawford, namely, that "nontestimonial hearsay is not subject to the Confrontation Clause." (U.S. v. Tolliver (7th Cir. 2006) 454 F.3d 660, 665, fn. 2.)
3. The trial court did not violate Whitmore's federal constitutional right to confront and cross-examine witnesses by admitting the Jensens' statements
Whether the Jensens' statements were testimonial and therefore subject to the requirements of the Confrontation Clause presents a question of law, which we review de novo. (Cf. People v. Seijas (2005) 36 Cal.4th 291, 304 [stating that appellate courts should generally apply the de novo or independent standard of review to claims that implicate a defendant's constitutional right to confrontation].)
Whitmore notes in his brief that during the computer chats, Eggert Jensen stated that his daughter had not seen him ejaculate because his wife, Bente Jensen, had warned her about it. Whitmore also notes in his brief that during the chats, he and Eggert Jensen discussed various topics relating to the manner in which they molested their daughters. However, Whitmore fails to demonstrate in his opening brief how any of the statements the Jensens made in the computer chats were testimonial. None of the statements to which Whitmore refers in his opening brief, such as those mentioned above, are testimonial in nature. They are not accusatory, were not made in a formal setting, and bear no resemblance to the "[v]arious formulations of th[e] core class of 'testimonial' statements," provided in Crawford, supra, 541 U.S. at page 51. (See id. at pp. 51-52 ["'ex parte in-court testimony or its functional equivalent ─ that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' [citation]; 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' [citation]; 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,' [citation]]".) Rather, the Jensens' statements are akin to statements that the Davis court deemed "clearly nontestimonial." (Davis, supra, 547 U.S. at p. 825 [noting that "statements from one prisoner to another" were clearly not testimonial].) Accordingly, we conclude that the trial court did not violate Whitmore's federal constitutional right to confrontation by admitting the Jensens' statements.
B. The trial court did not err in admitting evidence seized from the Jensens' computer on the ground that the People failed to establish a sufficient foundation for the evidence
Whitmore raises a series of claims pertaining to the admission of evidence seized from the Jensens' computer. We apply the abuse of discretion standard of review to these claims. (People v. Williams (1997) 16 Cal.4th 153, 197 ["On appeal, a trial court's decision to admit or not admit evidence . . . is reviewed only for abuse of discretion"].)
1. Factual and procedural background
a. Proceedings outside the presence of the jury regarding the admissibility of evidence taken from the Jensens' computer
Whitmore filed a motion to exclude all of the digital evidence in this case on various grounds, including that the People failed to demonstrate the authenticity of the evidence. Whitmore argued that the People were required to demonstrate that the digital images the People intended to introduce in evidence were authentic, and that the images in fact depicted the conduct that they appeared to depict. The People filed an opposition to the motion. In their opposition, the People argued that Evidence Code section 1553 places the burden on the defense to demonstrate that the images are inauthentic.
Evidence Code section 1553 provides, "A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent."
The trial court held a hearing on Whitmore's motion. At the hearing, defense counsel clarified that he was not raising an objection under Evidence Code section 1553. Defense counsel stated, "[W]hat [Evidence Code section] 1553 says is that there's a presumption that the printed representation of the images stored on a video is accurate . . . . And I don't have a problem with that, because that doesn't really . . . reach the issue we're talking about in this case." Similarly, defense counsel stated, "[Evidence Code section] 1553 just says if you print something off a computer, [it] is . . . what's on the hard drive of the computer. Fine I'm not arguing that."
After further discussions about the potential applicability of Evidence Code section 1553, the trial court stated that Whitmore was not raising an objection under that provision. Rather, the trial court noted, Whitmore was claiming that the People were required to demonstrate that the digital images the People intended to offer in evidence depicted actual sexual conduct, rather than simulated conduct. As to that issue, the trial court ruled that the People were required to either have a witness who was present at the scene when the photographs and videos were taken authenticate the evidence, or have an expert opine as to their authenticity.
During another pretrial hearing, Whitmore claimed that Danish police might have conducted a warrantless search of Whitmore's computer. The trial court allowed defense counsel to examine Lars Underbjerg, the lead detective on the Jensen case from the Danish National Police. Defense counsel questioned Detective Underbjerg regarding whether the Danish police or its agents had surreptitiously gained access to Whitmore's computer. In the course of explaining that Danish police had not examined Whitmore's computer, Detective Underbjerg briefly described the circumstances under which he obtained access to files on the Jensens' computer. Detective Underbjerg explained that he had not physically examined the Jensens' computer, but rather, that he had examined a copy of the hard drive of the computer.
The court proceeded to hold an Evidence Code section 402 hearing. The People presented expert testimony regarding the authenticity of the videos taken from the Jensens' computer. The expert opined that various videos taken from the Jensens' computer depicted actual, rather than simulated, sexual conduct. After the presentation of this testimony, in arguing against the admissibility of the evidence, defense counsel contended that the digital evidence was inadmissible because the People had failed to demonstrate an adequate chain of custody over the Jensens' computer. The prosecutor responded that, at this juncture, he was presenting testimony only to establish that the videos taken from the computer were authentic. The court ruled that the expert testimony adequately established that the videos were authentic and not fabrications. Immediately thereafter, defense counsel stated, "I still have chain of custody and foundation objections." The court stated that a chain of custody objection went to the weight of the evidence rather than its admissibility.
Evidence Code section 402 authorizes a trial court to hold a hearing outside the presence of the jury for the purpose of determining the admissibility of evidence.
The following day, the court held another Evidence Code section 402 hearing with respect to the evidence seized from the Jensens' computer. Stephanie Guerra, a detective with the San Diego Sheriff's Department, was among the witnesses who testified at the hearing. Guerra's testimony focused on the computer chats taken from the Jensens' computer. In the chats offered in evidence as exhibit No. 85, the writer who the People allege was Whitmore discussed how T.M.'s father had accused him of molesting her and that as a result, he had to get rid of his collection of photographs of T.M. The writer also mentioned that his daughter, "M.W.," had bowel problems. Guerra testified that she had learned that M.W. had bowel problems. In the chats, the writer mentioned having ordered black ankle cuffs. Guerra stated that she believed that police had discovered black ankle cuffs during a search of Whitmore's residence. In the chat, the writer wrote, "[M.W.] likes to tease me. . . ." In another portion of the chat, the writer wrote, "After the BJ [blow job] video, M.W. let me have anal sex with her again."
At the conclusion of the hearing, the trial court ruled that the People had adequately authenticated exhibit No. 85. The trial court reasoned in part:
"What I'm going to find at this time will be that the People's Exhibit number 85 has been authenticated. (1) It's self-authenticated, (2) it is authenticated by content, and also it is authenticated by statements against interest and confessions, in that people don't generally write about abusing their kids and doing horrible things to their children, sexually molesting them or other children."
b. Testimony presented in front of the jury regarding evidence seized from the Jensens' computer
Arne Pallesen, a Danish police officer from the city of Ringkoebing, Denmark, testified that on November 16, 2001, he seized the Jensens' computer during a search of their residence. Pallesen and a colleague placed the computer in an empty office at the Ringkoebing police station. Pallesen and his superiors requested assistance from the Danish National Police. At some time thereafter, Pallesen saw Frank Rosenstroem, a member of the Danish National Police, working on the computer.
Rosenstroem testified that he worked on the Jensens' computer at the Ringkoebing police department. Rosenstroem used a software program to make a "clone" of the computer's hard drive. Rosenstroem explained that he used a feature of this program to verify that the clone matched the original hard drive. Rosenstroem then provided the information he had copied from the Jensens' computer to Detective Underbjerg.
Detective Underbjerg testified that he analyzed the copy of the Jensens' computer hard drive. Detective Underbjerg compiled various files from the Jensens' computer on a compact disc. The People presented photographs and videos from this compact disc at trial. Detective Underbjerg also explained that he had extracted various computer chats between Whitmore and the Jensens from the Jensens' computer. Underbjerg compiled those chats into a 91-page document, which the People introduced in evidence as exhibit No. 85.
During the trial, the court allowed the People to have exhibit No. 85 read to the jury. Whitmore requested that the reading be transcribed by the court reporter. However, the court did not require the reporter to transcribe the reading, ruling that the reading was coming "specifically from exhibit number 85."
2. The trial court did not abuse its discretion in admitting evidence seized from the Jensens' computer
Whitmore raises a series of claims pertaining to the admissibility of evidence seized from Jensens' computer. We address each claim below.
a. Evidence Code sections 1552 and 1553
Whitmore claims that "the prosecution failed to carry its burden under Evidence Code sections 1552 and 1553." However, as is indicated by our quotation of the reporter's transcript above, in the trial court, defense counsel specifically stated that he was not raising an objection under Evidence Code section 1553. Further, Whitmore does not provide any other record citation indicating that he raised an objection under Evidence Code sections 1552 or 1553 at any other time during the proceedings. Accordingly, we conclude that Whitmore has forfeited this contention by failing to raise it in the trial court. (Evid. Code, § 353.)
b. Chain of custody
Whitmore contends that the trial court erred in overruling his claim that the People failed to adequately establish a chain of custody pertaining to the Jensens' computer. We assume for the sake of argument that the trial court implicitly overruled Whitmore's chain of custody objection based on the trial testimony of the Danish police officers regarding their seizure and analysis of the Jensens' computer.
In his brief, Whitmore does not indicate when he contends the trial court specifically ruled on his chain of custody claim. However, in making his claim, Whitmore relies on the trial testimony of Palleson, Rosenstroem, and Underbjerg regarding the circumstances under which Danish police obtained information from the Jensens' computer. We therefore infer that Whitmore is arguing that the trial court implicitly overruled a continuing chain of custody objection made during the trial.
In People v. Catlin (2001) 26 Cal.4th 81, 134, the Supreme Court outlined the law governing chain of custody claims:
"In a chain of custody claim, ' "[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." [Citations.]' [citation]; see also Méndez, Cal. Evidence (1993) § 13.05, p. 237 ['While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering'].)"
The People presented testimony that Danish police seized the Jensens' computer, maintained the computer at a police station, made a copy of the files that were on the computer, analyzed those files, and compiled the relevant files onto a compact disc that the People ultimately presented as evidence in this case. Whitmore points to no evidence of any tampering with the Jensens' computer or with the files extracted from the computer. Accordingly, we conclude that the trial court did not err in implicitly overruling Whitmore's chain of custody objection.
c. Self-authentication of the computer chats
Whitmore contends that the People failed to adequately establish a foundation for admission of the computer chats between Whitmore and the Jensens. Specifically, Whitmore claims that the trial court erred in determining that the chats were self-authenticating.
Evidence Code section 1421 provides, "A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing."
In the computer chats, the writer alleged to be Whitmore referred to matters that were unlikely to be known by persons other than Whitmore, including the numerous ways in which he had molested M.W. The writer also discussed the fact that he had been accused of molesting T.M., and that as a result, he had to destroy his pornographic pictures of T.M. The People provide numerous additional examples of comments made in the computer chats from which the trial court could have reasonably concluded that the document was self-authenticating, including the fright the writer received when Lisa [Whitmore's wife] came home unexpectedly while he was molesting M.W. In the message, the writer wrote, "Lisa came home ─ we ALMOST got caught . . . whew!!! My pulse is like 125 . . . ." Accordingly, we conclude the trial court did not abuse its discretion in determining that the computer chats were self-authenticating.
Whitmore does not suggest that M.W. was the author of the chats.
d. Transcribing the reading of exhibit No. 85
Whitmore claims that the trial court erred in overruling his request to have the court reporter transcribe the reading of exhibit No. 85 to the jury. We are aware of no authority, and Whitmore cites none, that would require that the trial court order the transcription of the reading of a written document that is admitted in evidence. The California Rules of Court expressly provide that electronic recordings that are admitted in evidence need not be transcribed. (Cal. Rules of Court, rule 2.1040(b) ["Unless otherwise ordered by the trial judge, the court reporter need not take down or transcribe an electronic recording that is admitted into evidence"].) We see no basis for concluding that a different rule should apply to written documents.
"In any event, state law entitles a defendant only to an appellate record 'adequate to permit [him or her] to argue' the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review." (People v. Rogers (2006) 39 Cal.4th 826, 857.) Exhibit No. 85 was offered in evidence in the trial court and, as such, is part of the appellate record. (Cal. Rules of Court, rule 8.320 (e).) The appellate record is thus sufficient to permit Whitmore to argue any points pertaining to exhibit No. 85 in this appeal.
Having rejected all of Whitmore's contentions, we conclude that the trial court did not err in admitting evidence seized from the Jensens' computer on the ground that the People failed to establish a sufficient foundation for its admission.
Whitmore also claims that exhibit No. 85 was inadmissible under Evidence Code sections 1552, 1402, and 1522, subdivision (a). However, in raising these arguments, Whitmore does not provide any record citations indicating that he objected to the admission of the evidence on these specific grounds at trial. The contentions are thus forfeited. (Evid. Code, § 353.)
C. There is sufficient evidence to support Whitmore's convictions on counts 7, 13, 20, 21, 22, 25, 31, 32, 40, 41, and 55 for posing a minor for the purpose of producing pornography
Whitmore claims that there is insufficient evidence to support 11 of the 18 convictions he suffered for posing a minor for the purpose of producing pornography (§ 311.4, subd. (b)). Specifically, he contends that the images at issue do not demonstrate that he posed minors for images involving "sexual conduct," as is required for a conviction pursuant to section 311.4, subdivision (b).
1. Standard of review
In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ─ that is, evidence which is reasonable, credible, and of solid value ─ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
2. Governing law
Section 311.4 provides in relevant part:
"(b) Every person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, or any parent or guardian of a minor under the age of 18 years under his or her control who knowingly permits the minor, to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals, for commercial purposes, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
"(d)(1) As used in subdivisions (b) and (c), 'sexual conduct' means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct."
In People v. Kongs (1994) 30 Cal.App.4th 1741 (Kongs), the court provided a list of factors to consider in determining whether an image is intended to stimulate a viewer by emphasizing a child's genitals, pubic, or rectal area:
"1) whether the focal point is on the child's genitalia or pubic area; [¶] 2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; [¶] 3) whether the child is in an unnatural pose, or in inappropriate attire, considering the age of the child; [¶] 4) whether the child is fully or partially clothed, or nude; [¶] 5) whether the child's conduct suggests sexual coyness or a willingness to engage in sexual activity; [¶] 6) whether the conduct is intended or designed to elicit a sexual response in the viewer." (Id. at p. 1755, citing United States v. Dost (S.D. Cal. 1986) 636 F.Supp. 828, 832 (Dost), affd. sub nom. U.S. v. Wiegand (9th Cir. 1987) 812 F.2d 1239.)
The Kongs court also noted, "With the exception of factor number six, which is a required element of a Penal Code section 311.4 violation, a trier of fact need not find that all of the first five factors are present to conclude that there was a prohibited exhibition of the genitals or pubic or rectal area: the determination must be made based on the overall content of the visual depiction and the context of the child's conduct, taking into account the child's age." (Kongs, supra, 30 Cal.App.4th at p. 1755.)
Other courts have also emphasized that "consideration of the specific Dost factors is not mandatory under section 311.4," and that in considering a sufficiency challenge in this context, a reviewing court must determine, "'based on the overall content of the visual depiction and the context of the child's conduct, taking into account the child's age' [citation], that the photograph depicts an exhibition of the genitals for the purpose of sexual stimulation of the viewer. [Citation.]" (People v. Spurlock (2003) 114 Cal.App.4th 1122, 1133 (Spurlock).) The Spurlock court also stated that in determining whether particular images constitute evidence of a section 311.4 violation, "[n]udity is not sufficient, but it is also not strictly necessary." (Spurlock, supra, 114 Cal.App.4th at p. 1129.) "Whether a particular display is an illicit exhibition is a more complicated inquiry than simply asking whether the genitals are exposed. Photographs showing a partially clad pubic area may well be intended to elicit a sexual response on the part of the viewer." (Id. at p. 1129.)
3. There is sufficient evidence to support all of the convictions
With this statutory language and case law in mind, we review the evidence that supports the challenged convictions.
Count 7 is premised on a short video, approximately 13 seconds in length, entitled "Potty," which showed M.W. sitting nude on a toilet with her hands up. While M.W. cannot actually be seen to be urinating in the video, the jury could have reasonably inferred that in taking a video of M.W. sitting nude on the toilet, Whitmore produced a video of "excretory functions performed in a lewd or lascivious manner." (§ 311.4, subd. (b).)
The identities of some of the victims depicted in the images is not clear from the images themselves, or from the record citations Whitmore provides in his brief. However, the identities of the victims appear to be undisputed. We therefore identify the victims in the images discussed in this section as the parties have in their briefs.
Count 13 is premised on a series of nine photographs of M.W. and K.W. naked in a bathtub. In one of the images, the girls are sucking on popsicles, and in two others each girl is holding a popsicle. In some of the images the girls have their legs partially spread apart, and the camera angle is focused toward their genitals. The jury could have reasonably determined that these images depict sexual conduct based on the totally nudity, the use of objects suggestive of phalli, and the focal point of the photographs.
Counts 20, 21, and 22 are based on a series of 85 photographs of M.W., J.R., and K.R. In the images, the girls are naked and rubbing fingerpaint on each other while in various positions on a blue tarp. Several of the photographs focus on the victims' genitalia. In others, the girls have their legs spread open. The full nudity, sexual poses, and conduct (playing naked in fingerpaints), all support the conclusion that the images constitute sufficient evidence of a violation of section 311.4, subdivision (b).
Each count pertained to a different victim.
Count 25 is based on a series of 11 photographs of T.M. either naked, or wearing only an open jacket. One of the photographs focuses on her buttocks. In another, she has her arms raised above her head, revealing developing breasts. Several photographs depict T.M.'s genitalia with her legs spread apart. The full and partial nudity depicted in the photographs, as well as the victim's poses, support the conclusion that the images constitute sufficient evidence of a violation of section 311.4, subdivision (b).
Counts 31 and 32 are based on a series of 10 photographs of M.W. and T.M. naked in the bathtub. In several of the photographs, the girls are sucking on candy canes. In others, the focal point is either the girls' genital area or buttocks. The jury could have reasonably determined that the images depict sexual conduct based on the totally nudity, the use of objects suggestive of phalli, and the focal points of the photographs.
Count 31 pertained to M.W. and count 32 pertained to T.M.
Count 40 is based on trial exhibit No. 116, which contains a series of 12 photographs of M.W. and W.W. in the bathroom. In the photographs, M.W. is completely nude and W.W. is wearing only a t-shirt. In one of the photographs, M.W. is pulling up W.W.'s shirt to reveal his genitals, in another she is grabbing his behind with her hand, and in a third M.W. is sticking her buttocks out at the camera. The jury could have reasonably determined based on the totally and partial nudity as well as M.W.'s poses and conduct, that the images depict sexual conduct.
Whitmore asserts that this count was based on exhibit No. 148. In his unanimity claim, Whitmore asserts that this count was based on exhibit Nos. 116 and 148. The People claim that the count was premised on exhibit No. 123. The verdict form implies that the count is actually premised on exhibit No. 116 in that it refers to "[W.W.] in the bathroom," which corresponds to exhibit No. 116. The reporter's transcript exhibit index describes exhibit No. 116 as "[M.W.] and [W.W.] in the bathroom." The index does not indicate that an exhibit No. 148 was ever admitted at trial.
Count 41 is based on a series of four photographs of M.W. The photographs depict M.W. either fully or partially nude, at yearly intervals, from ages five through eight. The first image was taken when M.W. was five years old. In the photograph, she is nearly nude, with only a towel covering her head and her outstretched arms. In the second picture, M.W., age six, is standing in the bathtub, with her genitals clearly visible. In the third picture, M.W., age seven, is naked in the bathtub, looking up at the camera, sitting cross-legged. In the final picture, M.W. is lying naked on a bed with her hands behind her head, revealing her full torso. Her genitalia are clearly visible and appear to be the focal point of the image. The jury could have reasonably, determined based on the totally nudity and the focal point of at least one of the photographs, that these images depict sexual conduct.
Finally, count 55 is based on 45 images of M.W. In the photographs, M.W. is naked in various suggestive poses, wrapped partially in a translucent veil or in a fish net. Several of the photographs reveal either her genitalia or buttocks. The jury could have reasonably determined, based on the nudity, the suggestive poses, and the use of inappropriate attire, that the photographs depict sexual conduct.
After reviewing the photographs and the video, we conclude that there is sufficient evidence to support each of the convictions.
D. Whitmore was not deprived of his constitutional right to a unanimous jury
Whitmore claims that the trial court deprived him of his constitutional right to a unanimous jury by allowing the People to present multiple images for most of the counts in which he was charged with posing a minor for the purpose of producing pornography (§ 311.4, subd. (b)) and committing a lewd act upon a child (§ 288, subd. (a)). Whitmore claims that the error requires reversal of counts 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20-32, 37, 38, 40, 41, and 55. Although it is not entirely clear from his brief, it appears that Whitmore's claim is that the trial court erred by failing to provide the jury with a unanimity instruction as to these counts. We apply the de novo standard of review to this claim. (People v. Guiuan (1998) 18 Cal.4th 558, 569 [determination of whether the trial court has a duty to give a particular jury instruction sua sponte is reviewed de novo].)
Whitmore suggests in his opening brief, and expressly states in his reply brief, that the trial court did not provide any unanimity instruction in this case.
1. Governing law
The jury's verdict in a criminal case must be unanimous. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) From this constitutional principle, courts have derived the general rule that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Russo, supra, 25 Cal.4th at p. 1132.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Ibid., quoting People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) Notwithstanding this principle, a unanimity instruction is not required where the offenses are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct. (People v. Diedrich (1982) 31 Cal.3d 263, 282.) " ' "This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]" ' " (People v. Napoles (2002) 104 Cal.App.4th 108, 115.)
2. Whitmore was not deprived of his right to a unanimous jury as to any of the specified counts
Contrary to Whitmore's suggestion in his briefs, the trial court provided a unanimity instruction as to counts 9, 10, 11, 13, 20-35, 37, 38, 41, and 55. A defendant's right to a unanimous verdict is preserved by the issuance of a unanimity instruction. (See Russo, supra, 25 Cal.4th at p. 1132.) Thus, as to the counts for which the court in fact issued a unanimity instruction, Whitmore's claim necessarily fails.
With respect to the remaining counts, Whitmore was charged in counts 8 and 40 with posing a minor for the purpose of producing pornography (§ 311.4, subd. (b)). Count 8 is based on three images taken from a video that depict a girl using a vibrator. In the first two images, the vibrator is seen, and in the final image, the girl is wearing the same shirt as in the other images. Count 40 is based on 12 photographs of W.W. and B.W. in the bathroom. (See part III.C.3., ante.)
Section 311.4, subdivision (b) generally prohibits individuals from having minors "pos[e] . . . for purposes of preparing any . . . image . . . involving . . . sexual conduct . . . ." Whitmore was not charged with possessing a single, discrete piece of child pornography, but rather, with having committed the offense of posing a minor for the purpose of producing child pornography. The evidence presented in support of each count constituted evidence of a single episode of posing for the purpose of producing child pornography. Thus, no unanimity instruction was required. To the extent that one could argue that each photograph captures a discrete act of "posing" (§ 311.4, subd. (b)), the acts were so closely connected as to form a single transaction, such that the continuous course of conduct exception applies and no unanimity instruction was required.
With respect to counts 14, 15, 16, 18 and 19, Whitmore was charged with committing a lewd act upon a child (§ 288, subd. (a)). Section 288, subdivision (a) provides in relevant part, "Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." While Whitmore notes that multiple photographs supported each of the counts, the photographs that were introduced as to each count documented a single act of lewd conduct. For example, Whitmore notes that the People presented exhibit Nos. 76 and 77 in support of count 14. The images all appear to have been taken during a single molestation session. With respect to each of the other counts Whitmore challenges, each set of images appears to depict a single molestation session. To the extent that each set of photographs could be said to depict a series of lewd acts, the acts were so closely connected as to form a single transaction, such that the continuous course of conduct exception applies and no unanimity instruction was required.
Whitmore does not provide record citations in his brief to connect each of the counts with the evidence he claims the People presented in support of the counts. However, in resolving Whitmore's claim, we have reviewed each of the images contained in the exhibits that Whitmore contends support each of the challenged counts.
E. The trial court did not err in providing the jury with verdict forms that asked the jury whether Whitmore did or did not commit conduct alleged pursuant to the One Strike law
Whitmore claims that the trial court erred in providing the jury with verdict forms that asked the jury whether Whitmore "did" or "did not" commit certain acts alleged pursuant to the One Strike law (§ 667.61). Whitmore contends that the forms should have asked the jury whether the One Strike law allegations were true or not true, not whether he did or did not commit the acts in question. Whitmore argues that the trial court's error deprived him of his constitutional right to a jury trial. Whitmore's claim raises a question of law, which we review de novo. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)
1. Factual and procedural background
During the trial, outside the presence of the jury, the trial court asked the prosecutor and defense counsel whether they had reviewed a set of proposed verdict forms. Defense counsel responded in the affirmative, and stated that he objected to the format of the verdict forms with respect to the One Strike law allegations contained therein. Defense counsel argued that former section 667.61, subdivision (i) required that the verdict forms be phrased so as to ask the jury whether the One Strike law allegations were true or not true. Defense counsel stated that the verdict forms could be reworded in such a manner, and noted that sections 1158 and 1158a provide examples of how such forms could be worded. The prosecutor argued that the forms were sufficient. The court overruled defense counsel's objection.
Former section 667.61, subdivision (i) is now codified, in slightly revised fashion, as section 667.61, subdivision (j). (Stats. 2006, c. 337 (S.B.1128), § 33, eff. Sept. 20, 2006.)
Sections 1158 and 1158a specify the wording of verdict forms to be used in cases in which a defendant is charged with having suffered a prior conviction (§ 1158) and being armed with a weapon or having used a firearm (§ 1158a).
The court provided the jury with verdict forms with respect to the One Strike allegations that contained the following language:
"And it is further alleged that said defendant, (DID / DID NOT) engage in tying or binding the victim in the commission of the present offense and additionally (DID / DID NOT) commit offenses described in Section 667.61(c), against more than one victim, within the meaning of Penal Code Section 667.61 (a)(c)(e)."
Blank lines appeared above the words "did/did not" on the verdict forms to allow the jury to fill in its verdicts.
2. Governing law
At the time of Whitmore's trial, former section 667.61 provided in relevant part:
We assume that the version of section 667.61 that was in effect at the time of Whitmore's trial governs our resolution of this issue. Whitmore has not argued that the law differed in any material respect at the time of his offenses.
"(a) A person who is convicted of an offense specified in subdivision (c) . . . under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).
It is undisputed that Whitmore suffered a qualifying conviction for each challenged count.
"(e) The following circumstances shall apply to the offenses specified in subdivision (c):
[¶] . . . [¶]
"(5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim."
"(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense."
"(i) For the penalties provided in this section to apply, the existence of any fact required under subdivision . . . (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."
In People v. Jones (1997) 58 Cal.App.4th 693 (Jones), the court considered a defendant's claim that a jury's verdicts finding him guilty of charged sexual offenses against two different victims did not constitute sufficient verdicts on two multiple victim circumstances alleged under the One Strike law. In rejecting this claim, the Jones court outlined the law governing a court's interpretation of a jury's verdict:
" ' "A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court." [Citations.]' [Citations.] 'The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]' [Citation.] '[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice. [Citations.]' [Citations.]" (Id. at p. 710.)
3. The verdict forms on the One Strike allegations are not defective
Whitmore has not cited any authority, nor has our own research uncovered any case law holding that a verdict form on a One Strike allegation must be written using the "true or not true" language that Whitmore claims is essential. The jury's intent in this case to find the One Strike allegations true is "unmistakably clear." (Jones, supra, 58 Cal.App.4th at p. 710.) No more is required. (Ibid.)
We reject Whitmore's argument that the Legislature intended to prescribe the particular language to be used with respect to verdict forms on One Strike allegations by mandating that such allegations be "found to be true by the trier of fact." (Former § 667.61, subd. (i).) Whitmore suggests that such language is akin to that used by the Legislature in sections 1158 and 1158a. We are not persuaded. Section 1158 provides in relevant part, "The verdict or finding upon the charge of previous conviction may be: 'We (or I) find the charge of previous conviction true' or 'We (or I) find the charge of previous conviction not true,' according as the jury or the judge find that the defendant has or has not suffered such conviction." Section 1158a contains a similar specification of the precise language to be used with respect to the verdict forms in cases involving being armed with a weapon or firearm use allegations. Former section 667.61 contains no such formulaic language specifying the precise manner by which a verdict form on One Strike allegations must be worded. Therefore, cases Whitmore cites, such as In re Hall (1927) 88 Cal.App. 212 and People v. Blackburn (1968) 261 Cal.App.2d 554, 559, that construe the verdict form requirements in section 1158 and 1158a, respectively, are inapposite.
We conclude that the requirement that a contested One Strike allegation be "found to be true by the trier of fact" (former § 667.61, subd. (i)) provides the defendant with a right to "a jury determination" (People v. Mancebo (2002) 27 Cal.4th 735, 752), as to the One Strike allegation, and that it does not specify the particular wording by which the jury must make that determination. The verdict forms the trial court provided pertaining to the One Strike allegations were thus legally sufficient.
F. Any error in the procedure by which the jury returned findings on the One Strike multiple victim allegations was harmless
Whitmore claims that this court must reverse all of the One Strike multiple victim findings because the jury could not have found him to have been "convicted" (§ 667.61, subd. (e)(5)) of offenses against multiple victims before the verdicts on the underlying charges were recorded. Whitmore maintains that the trial court should have held a bifurcated proceeding in which the jury first rendered verdicts on the underlying offenses, and then deliberated on any potentially applicable multiple victim allegations. We conclude that any error in the method by which the jury rendered its multiple victim findings in this case was harmless.
1. Factual and procedural background
As noted previously, the People charged Whitmore with having committed numerous sexual offenses against various victims. With respect to 23 of the counts, the People further alleged that Whitmore committed the offense against more than one victim within the meaning of the One Strike law (§ 667.61, subds. (a) or (b), (c), & (e)). The jury found Whitmore guilty of 21 of these counts, and on each of these counts, found the One Strike allegations true. The jury returned its findings on the One Strike allegations on verdict forms worded as follows:
With respect to the remaining counts, the trial court granted Whitmore's motion for acquittal on one of the counts, and the jury found him not guilty of the other count.
"And it is further alleged that said defendant, (DID / DID NOT) commit an offense described in Section 667.61(c), against more than one victim, within the meaning of Penal Code Section 667.61 (b)(c)(e)."
Blank lines appeared above the words "did/did not" on the verdict forms to allow the jury to fill in its verdicts. For several of the counts, the People alleged additional One Strike "tying or binding" (§ 667.61, subd. (e)(5)) circumstances. The verdict forms on these counts followed the example provided in part III.E.1., ante.
2. Governing law
In Jones, supra, 58 Cal.App.4th 693, the defendant claimed that, even assuming that a true finding on certain multiple victim One Strike allegations necessarily followed from the jury's verdicts on the underlying offenses, reversal was required because "the jury was never asked to make a finding that, in the words of the multiple victim circumstance, he had been convicted in the present case of committing a specified sexual offense 'against more than one victim.' [Citation.]" (Id. at p. 710.) The Jones court acknowledged that the jury had not expressly found the multiple victim circumstances to be true. "Rather, the jury merely made a finding, with respect to each alleged sexual offense, that defendant had committed it against the alleged victim." (Ibid.) Despite the lack of an express finding by the jury, the Jones court found that the verdicts adequately established the truth of the multiple victim circumstances, reasoning: "Here, it is clear the jury intended to find each multiple victim circumstance true. It made such findings to the best of its ability, with the verdict forms it had been given." (Id. at p. 711.)
The Jones court further found any assumed error to be harmless, reasoning:
"[I]n People v. Marshall (1996) 13 Cal.4th 799, the defendant was charged with three counts of murder, with a multiple-murder special-circumstance allegation. The trial court, however, refused to instruct the jury on the multiple-murder special-circumstance, and refused to submit it to the jury for a finding. (Id., at p. 850.) Instead, it waited until the jury returned verdicts finding the defendant guilty on multiple counts of murder; it then ruled that those verdicts constituted a true finding on the multiple murder special-circumstance allegation. (Id., at p. 816.)
"The Supreme Court held that, although this was error, the error was 'undoubtedly harmless.' (People v. Marshall, supra, 13 Cal.4th at p. 852.) 'The factual issue posed by the omitted instruction necessarily was resolved adversely to defendant under other properly given instructions. Citation. That is to say, the jury's verdict of guilt on three counts of murder in the first degree necessarily established the factual predicate of the special circumstance, that defendant was convicted in this proceeding of more than one count of murder in the first or second degree.' (Ibid.)
"Thus, in our case, even if the trial court had not only failed to instruct the jury on the multiple victim circumstances, but had also failed to give the jury any verdict forms for the multiple victim circumstances, the error would be harmless." (Jones, supra, 58 Cal.App.4th at p. 712.)
3. Any error in the manner by which the jury rendered its multiple victim findings was harmless
In Jones, the jury was not instructed on any multiple victim allegations and the jury did not expressly find any multiple victim allegations to be true. Nevertheless, the Jones court found that, given the jury's verdicts on the underlying verdicts, any assumed error was harmless. (Jones, supra, 58 Cal.App.4th at p. 712.) It necessarily follows that if the error in failing to return any multiple victim circumstance verdicts in Jones was harmless, any error in this case was harmless. Here, the jury's findings on the multiple victim circumstance allegations make it absolutely clear that the jury would have returned true findings as to the multiple victim allegations in a bifurcated proceeding.
Accordingly, we conclude that any assumed error in allowing the jury to render multiple victim allegation verdicts at the same time as it rendered its verdicts on the underlying offenses was clearly harmless.
G. There is sufficient evidence to support the jury's determination that Whitmore engaged in tying or binding M.W.; the trial court did not commit prejudicial error in refusing defense counsel's request to provide clarifying instructions as to the meaning of "tying or binding"
Whitmore claims that there is insufficient evidence to support the jury's finding that he engaged in "tying or binding" (§ 667.61, subd. (e)(6)) as those terms have been interpreted by this court in People v. Campbell (2000) 82 Cal.App.4th 71, 77 (Campbell). Specifically, Whitmore argues that he did not tie or bind M.W. in a manner that increased her vulnerability, as is required under the Campbell court's construction of the terms "tying or binding" in section 667.61, subdivision (e)(6). Whitmore contends that because he tied or bound M.W. only in order to simulate bondage, he did not increase M.W.'s vulnerability. We apply the sufficiency of the evidence standard of review discussed in part III.C.1., ante.
Whitmore also claims that the trial court erred in denying defense counsel's request that the court instruct the jury regarding the meaning of "tying or binding" (§ 667.61, subd. (e)(6)) as provided in the Campbell decision. We apply the de novo standard of review to this claim. (See People v. Posey (2004) 32 Cal.4th 193, 218 [stating that claims pertaining to jury instructions are reviewed de novo].)
1. Factual and procedural background
M.W. testified about several of the photographs taken by Whitmore. The photographs depict M.W. naked and tied up with rope. In some of the photographs, M.W.'s hands are tied; in others, her arms are tied to her legs; in still others, her entire torso is encircled in rope. With respect to each set of photographs, M.W. testified that Whitmore tied her up. While testifying generally about the incidents in which Whitmore tied her up, M.W. stated that she was sometimes unable to untie the ropes, while at other times she was able to do so. M.W. stated that occasionally the ropes hurt, and that she did "not usually" like being tied up. On some occasions, when the ropes hurt her, M.W. would tell Whitmore to untie her. M.W. stated that she recalled that Whitmore would do so immediately. The People introduced the photographs of M.W. in evidence. The photographs together with M.W.'s testimony constitute the evidence offered in support of counts 9, 10, 33, and 37.
With respect to count 1, the People played for the jury and offered in evidence a video entitled, "Bond 108." In the video, M.W. is lying naked on a large cushio N.M.W. places her hands above her head, and Whitmore places handcuffs on her wrists. Whitmore tickles M.W. while she is naked and handcuffed. At the end of the video, Whitmore massages her genitals.
Detective Guerra identified Whitmore and M.W. as the persons in the video.
On cross-examination, M.W. was asked whether she remembered "any handcuffs." M.W. responded, "I think there are ─ I think I remember handcuffs. They're like trick handcuffs, I think." M.W. agreed with defense counsel's suggestion that she could push something and release the handcuffs. She also responded in the affirmative to defense counsel's question, "You could get out of them anytime you wanted to; right?"
During a jury instruction conference, defense counsel indicated that he wanted to discuss with the trial court a possible revision of the court's jury instruction regarding the One Strike law "tying or binding" allegations (§ 667.61, subd. (e)(6)) in accordance with Campbell. The trial court asked defense counsel whether he was referring to the notion of the "vulnerability of the victim." Defense counsel responded in the affirmative. Defense counsel requested that the court modify the One Strike allegation jury instruction so as to further define the terms "tying or binding" (§ 667.61, subd. (e)(6)) as the terms were defined in Campbell. The trial court denied the request, reasoning that the terms had a common and plain meaning, and that the Legislature had not modified the terms.
2. Governing law
Section 667.61, the One Strike law, "'sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes' when a defendant commits one of those crimes under specified circumstances. [Citation.]" (People v. Acosta (2002) 29 Cal.4th 105, 118.) Section 667.61, subdivision (e)(6), specifies one such circumstance, providing: "The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense."
In Campbell, this court considered whether "covering the eyes of the victim of a sexual assault with tape so as to prevent sight constitute[s] 'tying or binding' of the victim," for purposes of section 667.61, subdivision (e)(6). (Campbell, supra, 82 Cal.App.4th at p. 73.) In the course of answering this question in the affirmative, the Campbell court outlined the plain meaning of the words of the statute:
"The verb 'tie' is defined as 'to bind, fasten, make fast (one thing to another, or two or more things together) with a cord, rope, band, or the like . . . to confine (a person or animal) by fastening to something,' while 'bind' is defined in its two principal senses as 'To tie fast,' and 'To tie about, bandage, gird, encircle.' The noun 'tie' itself derives from Old Norse 'taug,' or rope. [Citation.]" (Id. at p. 77.)
The Campbell court then observed that the "common theme" of the other actions proscribed in subdivisions in 667.61, subdivision (e) was that "they increase the victim's vulnerability." (Campbell, supra, 82 Cal.App.4th at p. 78.) The Campbell court stated that "[w]hile the increased vulnerability of a victim whose hands or feet (or both) are tied is immediately clear, we cannot in any logical manner distinguish such an enhanced vulnerability from that inherent in being bound so as to be unable to see." (Ibid.) The Campbell court rejected the defendant's argument that he had not engaged in tying or binding because his intent in wrapping the tape around the victim's head was to prevent the victim from identifying him, rather than to render the victim more vulnerable. The Campbell court reasoned, "[T]he statute does not refer at all to the attacker's objective in performing prohibited acts, and any such particular intention cannot be controlling." (Ibid.) The Campbell court ultimately concluded that the defendant's act in binding the victim's head with tape so that the victim could not see came within the meaning of section 667.61, subdivision (e)(6). (Campbell, supra, 82 Cal.App.4th at p. 79.)
The Campbell court summarized these circumstances as "kidnapping of the victim, subdivision (e)(1); committing the offense during a burglary, subdivision (e)(2); inflicting great bodily injury on the victim, subdivision (e)(3); using a deadly weapon, subdivision (e)(4); and forcibly administering a controlled substance to the victim, subdivision (e)(7)." (Campbell, supra, 82 Cal.App.4th at p. 78.)
The Campbell court also considered the defendant's claim that to construe section 667.61, subdivision (e) in such a fashion would render the statute unconstitutionally vague. The Campbell court noted that a statute "'"'cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.' " [Citation.]' [Citations.]" (Campbell, supra, 82 Cal.App.4th at pp. 79-80.) The Campbell court rejected the defendant's claim, reasoning:
"A reasonable and practical construction of the phrase 'tying or binding' necessarily includes only those actions which render a victim more particularly vulnerable, [fn. omitted] whether by restricting her or his freedom of movement or by depriving her or him of one or more senses. Under such a practical reading of the statute, one aware of the statutory proscription [fn. omitted] against the tying or binding of the victim may readily determine, using no more than the normal and customary meaning of the words, that actions such as wrapping the victim's head in tape (binding the victim's head) will result in the perpetrator's exposure to an enhanced sentence for the underlying sexual offense committed." (Campbell, supra, 82 Cal.App.4th at p. 80.)
3. There is sufficient evidence to support the One Strike "tying or binding" findings
Although styled as a sufficiency claim, Whitmore does not address the specific evidence of tying or binding that the People offered to prove each count. Rather, he makes the general assertion that "[t]he evidence in this case was undisputed that the tying or binding was not intended to, nor did it make [M.W.], 'more vulnerable'." At the outset, we reject Whitmore's claim that there is insufficient evidence to support the findings because he did not intend to make M.W. more vulnerable by tying or binding her. Whitmore's intent in tying and binding M.W. is irrelevant. (Campbell, supra, 82 Cal.App.4th at p. 78.)
Assuming for the sake of argument that Campbell stands for the proposition that the only tying and binding that is proscribed by section 667.61, subdivision (e)(6) is that which renders a victim more vulnerable, the jury could have reasonably found that the photographic evidence described above demonstrated that Whitmore's tying or binding M.W. rendered her more vulnerable. In many of the photographs, M.W.'s hands or legs are bound ─ a state that the Campbell court noted clearly demonstrates the increased vulnerability of a victim. In other photographs, M.W. was even more elaborately constrained, with her torso fully encircled in rope. In the video, M.W.'s wrists are bound together. The jury plainly had a sufficient basis on which to find true the One Strike "tying or binding" (§ 667, subd. (e)(6)) allegations.
4. The trial court did not commit reversible error in failing to instruct the jury pursuant to Campbell
We assume for the sake of argument that the Campbell court was correct in stating that "[a] reasonable and practical construction of the phrase 'tying or binding' necessarily includes only those actions which render a victim more particularly vulnerable, [footnote omitted] whether by restricting her or his freedom of movement or by depriving her or him of one or more senses." (Campbell, supra, 82 Cal.App.4th at p. 80.) We assume further that the trial court erred in denying defense counsel's request to further define the terms "tying or binding" in accordance with this portion of Campbell.
However, Whitmore has failed to demonstrate reversible error. As the Campbell court itself noted, "[T]he increased vulnerability of a victim whose hands or feet (or both) are tied is immediately clear . . . ." (Campbell, supra, 82 Cal.App.4th at p. 78.) The video and photographic evidence described above clearly demonstrates that Whitmore "restrict[ed] [M.W.'s] freedom of movement. . . ." (Id. at p. 80.) We therefore conclude that the photographic and video evidence demonstrates beyond a reasonable doubt that any instructional error was harmless.
H. The trial court did not err in providing each juror with the verdict forms in tabular form and in providing each juror with a document that provided basic information pertaining to each count
Whitmore claims that the trial court erred in providing each juror with the verdict forms in tabular form and in providing each juror with a document that provided basic information pertaining each count. Whitmore claims that the trial court's action invaded the fact-finding province of the jury.
1. Factual and procedural background
Prior to submitting the case to the jury, the court indicated to both parties that it intended to provide each juror with two documents, a "verdict worksheet" and a "worksheet." The verdict worksheet listed each of the possible verdicts in the case in tabular format. The worksheet set forth, as to each count, the count number, the charged offense and any lesser included offenses, a description of the charged offense taken from the verdict forms, the victim's name, and a blank space for the jurors to write notes.The court provided the documents to the jurors in an effort to assist the jurors in "keep[ing] track of their own verdicts" in light of the "complexity of this case and the number of counts." Defense counsel objected to the court providing the jurors with the documents. The trial court overruled the objection.
2. Governing law
Neither the People nor Whitmore have cited any statute or rule that governs a trial court's providing the jury with documents such as those the trial court provided in this case. Nor has our independent research uncovered any such statute or rule. However, it is well established that trial courts possess the inherent authority to develop procedures necessary for the orderly administration of justice. In People v. Ruiloba (2005) 131 Cal.App.4th 674, 690, the court described this authority as follows:
"'All courts have inherent powers which enable them to carry out their duties and ensure the orderly administration of justice. The inherent powers of courts are derived from article VI, section 1 of the California Constitution and are not dependent on statute. [Citations.] These powers entitle courts to " ' . . . adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council.' " [Citation.] Thus, a trial court has the inherent authority to create a new form of procedure in a particular case, where justice demands it. [Citations.] " 'The . . . power arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function.' " ' [Citation.]"
3. The trial court did not err in providing the worksheets to the jury
The trial court possessed the inherent authority to provide the worksheets to the jury as a method by which to assist the jury in managing the large number of verdicts in the case. With respect to the verdict worksheet, the document provided nothing more than the various possible verdicts, in tabular form. We see nothing objectionable about such a document, and Whitmore does not raise any specific objection concerning this document.
With respect to the worksheet, Whitmore claims that this document invaded the fact-finding province of the jury in that, for some of the counts, the worksheet provided the name of the victim, while the information and the verdict forms did not. Whitmore argues that as to each count, the jury was required to find that there was a victim. He contends that in providing the name of the victim, "the court took the matter away from the jury and, in effect, negated the necessity of a finding on that element of the referenced count." We disagree. Even assuming for the sake of argument that the People were required to prove the name of each victim, rather than simply that a victim existed, the trial court's providing the name of each victim was, at the very worst, fair comment on the evidence. (See § 1093, subd. (f) ["the judge may state the testimony, and he or she may make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case"]; People v. Sturm (2006) 37 Cal.4th 1218, 1232 ["A trial court may comment on the evidence . . . but such comments 'must be accurate, temperate, nonargumentative, and scrupulously fair.' [Citation]"].) Whitmore has failed to challenge, much less demonstrate, that the trial court listing of the of victim's names was not an accurate and fair summary of the evidence.
People v. Clark (1943) 59 Cal.App.2d 760 (Clark), on which Whitmore primarily relies, is plainly distinguishable. In Clark, "the blank form of verdict finding the defendant guilty, which was given to the jury for their use and was actually signed by the foreman and returned as the verdict of the jury, had the name of the trial judge signed to it, with a penstroke drawn through the signature." (Id. at p. 761.) The Clark court reversed the conviction, reasoning, "juries are alert to take their cue from any intimation, real or fancied, of the trial judge as to what verdict he believes they should return." (Id. at p. 762.) Unlike in Clark, the trial court's verdict worksheets did not provide the jurors with a cue as to the verdict the court believed the jury should return.
We conclude that the trial court did not err in providing the jurors with the verdict worksheet and worksheet documents.
I. There is sufficient evidence to support the conviction on count 2 for aggravated sexual assault of a child
Whitmore claims that there is insufficient evidence to support his conviction on count 2 for aggravated sexual assault on a child. We apply the sufficiency of the evidence standard of review discussed in part III.C.1., ante.
1. Governing law
Whitmore was convicted of aggravated sexual assault of a child (§ 269) (count 2). Section 269 provides in relevant part:
"(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child:
[¶] . . . [¶]
(3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286."
Section 286 defines sodomy as follows: "Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." "[P]enetration may be established by circumstantial evidence." [Citation.]" (People v. Adams (1993) 19 Cal.App.4th 412, 429.)
2. The People presented sufficient evidence that Whitmore sodomized M.W.
Whitmore claims that there is insufficient evidence to establish that he penetrated M.W.'s anus with his penis. Whitmore does not dispute that the People played a video for the jury entitled "butt_fuck," that "shows [M.W.] naked and tied with rope, with [Whitmore] behind her making a rocking back and forth motion." The video also shows Whitmore removing his penis from M.W.'s buttocks and ejaculating. While the video does not contain actual depictions of penetration, the jury could plainly infer from the video that Whitmore had penetrated M.W. Further, in a July 10, 2001, chat with Eggert Jensen, Whitmore states that M.W., "Lets me cum in her butt only recently." Accordingly, we conclude the People presented sufficient evidence that Whitmore sodomized M.W.
The information alleged that Whitmore had committed the aggravated sexual assault at some point between "January 1, 2000 and November 16, 2001."
J. The trial court did not err in denying Whitmore's motion to sever
Whitmore claims that the trial court erred in denying his motion to sever certain counts from others for trial. We review a trial court's ruling on a motion to sever for an abuse of discretion. (People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).)
1. Factual and procedural background
Prior to trial, Whitmore filed a motion in which he requested that the court order that each of the counts in which the People sought a sentence of 15 or 25 years to life be tried separately from each other or, in the alternative, in smaller groupings than were presented in the information. Whitmore also moved to try all of the counts that charged him with producing child pornography (§ 311.4, subd. (b)) separately from those counts that carried a potential indeterminate life sentence. In his motion, Whitmore argued that the severity of the punishment for each of the "'life' counts" weighed in favor of granting the motion to sever. Whitmore also argued that certain of the "'life' counts" would present special problems unless severed. Whitmore noted, for example, that he might testify as to some counts and not others, and that he could potentially be prejudiced if he were required to invoke his privilege against self incrimination as to certain counts. In addition, Whitmore asserted that the charges for producing child pornography did not meet the statutory test for joinder. Whitmore claimed that the cumulative effect of the evidence also warranted severance. He asserted that the court was required to determine the potentially prejudicial impact of the cumulative effect of all of the evidence. The trial court denied the motion.
Although the court's minute order denying Whitmore's motion indicates that the People filed an opposition to the motion, the People's opposition does not appear in the record.
2. Governing law
Section 954 provides in relevant part:
"An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."
Where the statutory requirements for joinder are satisfied, a defendant seeking severance must make a clear showing in the trial court of potential prejudice from joining the charges. (Bradford, supra, 15 Cal.4th at pp. 1314-1315.) In Bradford, the Supreme Court outlined the ways in which a defendant can establish a substantial danger of prejudice from the joinder of different offenses for trial:
" ' "The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." [Citation.] [¶] 'The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.' [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]' " (Id. at p. 1315.)
If evidence as to each of the joined charges would have been admissible in separate trials on the charges, the defendant cannot establish error in the denial of a motion to sever. (Bradford, supra, 15 Cal.4th at pp. 1315-1316.)
3. Whitmore has failed to demonstrate that joinder was improper, or that he has suffered any prejudice from the trial court's denial of his motion to sever counts for trial
Whitmore asserts that the joinder of all of the counts was improper under section 954. However, he provides no legal argument as to why this is so. Accordingly, we reject this argument.
Whitmore also claims that he suffered prejudice from the trial court's denial of his motion to sever. The first step in assessing the propriety of a trial court's ruling on a motion to sever is to determine whether evidence as to all of the counts was cross-admissible. Whitmore acknowledges that "some of the evidence in this case would be 'cross-admissible,'" and fails to demonstrate that any of the evidence would not have been cross-admissible. Whitmore has thus failed to demonstrate that he was prejudiced by the trial court's denial of his motion to sever. (Bradford, supra, 15 Cal.4th at pp. 1315-1316.)
Finally, Whitmore argues that the "most compelling reason to grant a severance in this case was the she[e]r number of counts and the shocking allegations underlying those counts." However, Whitmore provides no authority that severance is required where the counts are numerous or the allegations underlying those counts are unusually shocking, particularly where a defendant has failed to demonstrate a lack of cross-admissibility.
Accordingly, we conclude that the trial court did not err in denying Whitmore's motion to sever.
K. The cumulative error doctrine does not require reversal of the judgment
Whitmore claims that, to the extent this court concludes that no individual error merits reversal, the cumulative error doctrine requires reversal of the judgment.
"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.)
We have concluded that nearly all of Whitmore's claims of error are without merit. We have further concluded that any assumed errors that the trial court may have committed, whether considered individually or together, do not require reversal. Accordingly, there was no cumulative error that requires reversal of the judgment.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.