P. v. Brooks

Filed 10/24/06 P. v. Brooks CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Ryan Earl Brooks was convicted of exhibiting pornographic matter to a minor for sexual purposes. The victim, a young girl, testified that defendant had invited her into a bedroom, took off his clothes, and played a pornographic videotape while sitting next to her. The victim’s grandmother and a police investigator both testified that the victim had told them that defendant also masturbated during the video. Defendant testified that the girl had merely walked in on him while he was watching the video.

Defendant contends that the trial court erred in dismissing a deliberating juror, admitting the hearsay testimony of the victim’s statements to the grandmother and the police investigator, failing to deliver a requested jury instruction, and imposing an improper condition of probation. We affirm.

I. BACKGROUND

Defendant was charged in an amended information, filed January 27, 2005, with two felony counts of exhibiting pornographic matter to a minor for sexual purposes. (Pen. Code, § 288.2, subd. (a).)

In 2003, defendant shared a home with his girlfriend, their son, and her daughter, J., then six years old. The prosecution was based on evidence that on at least two occasions, while J. was with defendant in a bedroom, he sat next to her on the bed and played a pornographic videotape.

The incidents first came to light when J. told her maternal grandmother about them. Prior to trial, the court ruled that a portion of J.’s account to her grandmother could be admitted with a limiting instruction under the “fresh complaint” doctrine. On the basis of this ruling, J.’s grandmother, the first witness at trial, testified that on September 9, 2003, while she was babysitting, J. told her that she had watched a pornographic movie with defendant. J. described an act of sexual intercourse from the tape.

J. was then called. She testified that defendant would sometimes watch her when her mother was at dance class. One day, while J. was with defendant in her mother’s bedroom, defendant got undressed. He sat next to her on the bed, and they then watched a movie featuring naked adults. Although J. initially testified that this occurred once, she later said that it happened more than once, although she did not know how many times. She denied that defendant had touched himself while they were watching. J. acknowledged having told her grandmother about the incidents, but she was initially vague about what she told her grandmother. J. testified that she did not remember having discussed the matter with a police officer or telling the officer defendant had touched himself.

On redirect examination, J. admitted that she told her grandmother defendant had taught her names for genitals, put his hand on his penis and moved it up and down, and ejaculated during the playing of the videotapes. She denied that defendant had asked her whether she wanted to touch his penis.

The court thereafter permitted J.’s grandmother to be recalled to testify that J. had told her that defendant had masturbated in front of J. and had asked her whether she wanted to touch his penis, and that she had touched it. She also testified that J. had used vulgar words to refer to male genitals.

The court also permitted a police officer to be examined about his interview with J. The officer testified that J. told him defendant invited her to watch a pornographic movie while he was sitting naked on the bed next to her. During the movie, defendant masturbated and ejaculated. The officer also testified that J. told him defendant asked her if she wanted to touch his penis, but she told the officer she refused.

Defendant testified in his own defense. He acknowledged that he kept adult videotapes in the bedroom closet, which he watched both with his girlfriend and while alone. He testified that J. had entered the bedroom when he was masturbating while watching a movie toward the end of 2002 or early 2003. He denied ever intentionally watching a pornographic videotape with J.

The jury began deliberating on the afternoon of January 31. The next day, the jurors sent a note to the court indicating that while they had reached a decision on the second count, they were potentially deadlocked 10-2 on count I. At more or less the same time, the prosecution informed the court that it had questions about the truthfulness of the responses given by sitting Juror No. 11 on his voir dire questionnaire.[1]

The prosecution’s primary concern was that the juror had failed to disclose, in response to a question asking, “Have you, a close friend, or relative been involved in a criminal case,” that he had been prosecuted and convicted in 1997. Instead, he listed only relatives who had been victims of a crime. To the question, “Have you been convicted of a crime,” the juror responded, “No (Dismissed in 2004).” In addition, the juror had omitted from a list of prior employers his work for the county marshal’s office, from which he was fired. In response to a question asking whether “you, a close friend, or relative [are] employed by a federal, state, or local law enforcement agency,” the juror had originally written a response but had scratched it out.

Court records demonstrated that the juror had, in fact, been the subject of a criminal prosecution but later had been permitted to withdraw his guilty plea under Penal Code section 1203.4, which permits such a withdrawal, among other grounds, upon successful completion of probation. Questioned about his responses, the juror acknowledged having pleaded guilty to criminal charges, stating, “It had to do with some things that happened when I was in law enforcement. But they were all dismissed.” The juror explained his understanding that, as a result of the withdrawal of his plea, he was not required to disclose the fact of the prosecution unless he was to be licensed by the state. The juror also acknowledged that he had been employed in law enforcement for nearly 20 years, 12 of them with the Solano County Marshal’s Office, and that he had been fired from the marshal’s office. The juror said that he did not disclose his work in law enforcement because he ran out of room on the questionnaire.

When asked by the court what the allegations were in the prosecution, the juror stated, “I don’t remember,” but he later admitted under examination by the prosecutor that he was accused of “[getting] information from a computer” while working as a marshal. When asked more detailed questions about the charges to which he pled guilty, the juror refused to answer in the absence of counsel.

During voir dire, the trial judge on at least three occasions had cautioned jurors that they had a duty of “absolute candor” in responding to questions during voir dire. For example, the judge commented, “I understand the natural reluctance that you may have to share personal information about yourself in front of a group of strangers. . . . However, I do ask that you overcome that reluctance and that you share with us the information that we need so that we can make intelligent decisions as to whether or not you are an appropriate person to serve on this jury.” She also emphasized that jurors had an obligation to volunteer information that might be pertinent. When Juror No. 11 was asked during group questioning whether he knew the court personnel or potential witnesses, he responded that he had been a “deputy marshall for Solano County” and that he had worked with the trial judge “once or twice.” Asked by the judge whether she had been acting as prosecutor or trial judge at the time, the juror stated, “It was outside the courtroom. It was social gatherings that you would attend some functions, and I would be there, things like that.” There was no further discussion of the juror’s work for the marshal’s office or his prosecution.

The trial judge dismissed the juror and appointed an alternate juror in his place. In explanation, the judge said, “[T]his Court was very clear that it was important for jurors to volunteer information to allow attorneys to make decisions regarding peremptory challenges. [His conviction is] a huge bit of information that both sides would have wanted to know. And I am very distressed that he failed to disclose that. And so it seems that he did not answer these questions directly regardless of what his understanding was. I believe he had a duty to share this information and did not.”

Following appointment of the alternate juror, the jury found defendant guilty of the first count. He was acquitted of the second count under Penal Code section 288.2, subdivision (a), but he was convicted of the lesser included offense of exhibiting harmful matter to a minor in violation of Penal Code section 313.1, subdivision (a). Defendant was sentenced to three years of formal probation and one year in county jail.

II. DISCUSSION

A. Discharge of a Juror

Defendant first contends that the trial court erred in discharging Juror No. 11, arguing that no good cause existed for the discharge because there was insufficient proof the juror had lied on his questionnaire.

“A sitting juror can be removed only for illness or other good cause.” (People v. Price (1991) 1 Cal.4th 324, 400, superseded on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162 (Price).) When a court learns that a juror is accused of misconduct, the court is required to hold a hearing to determine whether there are grounds for the accusation. (People v. Burgener (1986) 41 Cal.3d 505, 520, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754.) The court’s subsequent decision is reviewed for abuse of discretion, but “[t]he court’s discretion is not unbounded: it must determine whether good cause exists to discharge the juror, and its reasons for discharge must appear in the record as a demonstrable reality.” (People v. Roberts (1992) 2 Cal.4th 271, 325.)

When a sitting juror is found to have concealed material information during voir dire, the juror’s dismissal is not automatic. The trial court must ordinarily find some evidence of the possibility of juror bias before dismissal is warranted. (Price, supra, 1 Cal.4th at p. 400.) When the concealed information concerns a past criminal history, however, courts have implied bias from the mere act of concealment, justifying dismissal without further inquiry. (People v. Morris (1991) 53 Cal.3d 152, 183-184, disappoved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; Price, at p. 400 & fn. 8.) Accordingly, the Supreme Court has held that “[c]oncealment of prior criminal charges constitutes good cause for discharge of a juror,” without requiring a further demonstration of bias. (People v. Johnson (1993) 6 Cal.4th 1, 22, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 878-879.) In People v. Johnson, the court found no error in the trial court’s replacement of a sitting juror who was found not to have disclosed two prior arrests when asked if he had ever been accused of a crime. (Ibid.)

The trial court’s conclusion that Juror No. 11 intentionally concealed information about his criminal history is supported by substantial evidence. First, in response to the question asking whether he or members of his family had ever been “involved in a criminal case,” he did not list himself. By implication, this omission constituted the false statement that the juror had not been involved in a criminal case. In fact, he had pled guilty to a crime in 1997. Second, in response to a question asking directly whether he had ever “been convicted of a crime? (pled or found guilty),” the juror responded, “No (Dismissed in 2004).” As noted above, the “no” was false. While it is true that the juror qualified his negative response, the qualification itself was misleading. The indication of a dismissal, when combined with the unconditional “no,” suggests that the juror had been arrested but that the charges were subsequently dismissed, not that he had been permitted to withdraw a guilty plea after completing probation. The impression that no conviction had ever occurred was strengthened by the juror’s false omission of his name in response to the preceding question, whether he had ever been “involved in a criminal case.” Together, these responses support the inference that the juror was attempting to conceal his past criminal history.

While the juror offered a facially plausible explanation for his responses, claiming that he thought the charges no longer had to be disclosed, the trial judge acted within her discretion in rejecting this explanation. Significantly, the juror was evasive when he was initially asked by the judge about the nature of the charges, claiming implausibly that he no longer remembered the nature of a criminal conviction that led to his termination from a 12-year position with the marshal’s office. The truthfulness of this response was subsequently called into question by the prosecution’s examination, during which the juror reluctantly conceded that he had been accused of a computer-related crime but refused to provide further details. The juror’s evident reluctance to discuss the conviction, combined with his failure to list his prior employment with the marshal’s office, provided substantial evidence to support a conclusion that, notwithstanding his explanation, the juror consciously attempted to avoid revealing his criminal history.

Defendant contends that it was error to remove the juror because there were no grounds for bias demonstrated beyond the fact of his concealment. As noted ante, however, the Supreme Court has not required a showing of bias before ordering removal when a juror is found to have concealed information about a criminal past. (People v. Johnson, supra, 6 Cal.4th at p. 22.) The case primarily relied upon by defendant, People v. Carter (2005) 36 Cal.4th 1114, did not involve purported false statements about a criminal past. (Id. at p. 1205.)

We do not reach defendant’s contention that the court erred in concluding that he also attempted to conceal his history of employment in law enforcement, since the trial court’s conclusion regarding the juror’s failure to disclose his criminal past constituted good cause sufficient to support the decision to remove him. For the same reason, we also do not reach defendant’s claim that the juror was improperly removed to relieve the deadlock among the jurors. We note, however, that (1) at the time of the juror’s removal there was no evidence suggesting he was one of the two holdout jurors; (2) the jury could hardly have been characterized as “deadlocked,” since it had been deliberating for barely a day at the time the note was sent; and (3) there is nothing in the record to suggest that Juror No. 11 was removed for any reason other than his concealment of his criminal record.

B. Admission of Hearsay Testimony

Defendant argues that the trial court’s admission of hearsay testimony by J.’s grandmother and the police officer recounting J.’s statements to them was error.

The general rule is that “[a] statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement . . . .” (People v. Johnson (1992) 3 Cal.4th 1183, 1219 (Johnson); Evid. Code §§ 770, 1235.) A witness’s truthful testimony at trial that he or she does not recall a particular event is not inconsistent with a prior account of that event and cannot serve as a predicate for admission of the prior account pursuant to section 1235. (People v. Sam (1969) 71 Cal.2d 194, 208-209.) Nonetheless, if “there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission of his or her prior statements is proper.” (Johnson, at pp. 1219-1220.) “ ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.’ [Citation.] When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied.” (Id. at p. 1219, quoting People v. Green (1971) 3 Cal.3d 981, 988.)

The Supreme Court has applied the principle recognized in Johnson in affirming the admission of hearsay under Evidence Code section 1235 when there was a reason to conclude that the witness’s claim of forgetfulness was false and evasive. Most recently, in People v. Ledesma (2006) 39 Cal.4th 641 (Ledesma), the court found no error in the admission of the prior testimony of a witness who claimed no longer to remember the event described in the prior testimony. The court found evidence to support the finding of a false and evasive claim of forgetfulness in the facts that the witness had failed to appear at a prior hearing, had testified she was a friend of the defendant and was reluctant to testify at trial, and had claimed that her recollection of the event was not refreshed even by reading her own prior testimony. (Id. at pp. 711-712; see similarly, People v. Ervin (2000) 22 Cal.4th 48, 85 (Ervin).)

As defendant acknowledges, the central focus of both witnesses’ hearsay testimony was J.’s statement to them that defendant masturbated during the movie and asked J. whether she wanted to touch his penis. Defendant first contends that the trial court erred in permitting this testimony because, at most, J. claimed not to remember the activities about which the witnesses testified. This is not true. Initially, J. did not merely state that she did not remember these events; she denied that they occurred. When asked whether, “At any of these times that you were back in the bedroom and watching the movie, did [defendant] do anything-touch his body at all,” J. answered with a flat denial. The same was true when J. was asked whether she told her grandmother that defendant asked whether she wanted to touch his penis. J. answered, “No, because he didn’t”-a denial not only of the conversation but that the touching occurred at all. J.’s prior statements to her grandmother and the officer that defendant had masturbated and asked her whether she wanted to touch his penis were therefore directly inconsistent with her trial testimony and were admissible for that reason.[2]

Even if J. had not flatly denied the central element of the testimony of the officer and her grandmother, the accounts of her prior statements would have been admissible in light of her general evasiveness on the topics they discussed. J. denied remembering, and subsequently wavered about, her conversation with the officer. In addition, J. first denied, then claimed not to remember, then vaguely admitted, her discussion with her grandmother about defendant’s masturbation and his instructing her on the names for body parts. The inconsistent, reluctant nature of her testimony about what understandably could be an uncomfortable topic for a young girl provided substantial evidence from which the trial judge could have concluded that J.’s responses were evasive and incomplete, justifying admission of the prior statements under Johnson, Ervin, and Ledesma.[3]

Defendant also contends that the admission of this testimony violated his Sixth Amendment right to confront the witnesses against him under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Crawford holds that the Sixth Amendment is violated when out-of-court statements of non-testifying parties are admitted. Crawford also made clear, however, that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green [(1970)] 399 U.S. 149, 162. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Id. at p. 59.) In People v. Martinez (2005) 125 Cal.App.4th 1035 (Martinez), the court reaffirmed that the Sixth Amendment is not violated by the admission of out-of-court statements if the declarant is available for cross-examination. (Id. at p. 1050.) Because J. was available for questioning about these statements-indeed, was questioned about them by the prosecution-admission of the testimony of her grandmother and the officer did not constitute a violation of the confrontation clause. Defendant argues that the confrontation clause was violated because J. claimed not to remember certain events. We would reject this argument on the strength of Green and Martinez even if J. had merely testified that she no longer remembered the events, since her presence on the stand at trial was sufficient to avoid a constitutional violation. It is simply not correct, however, that J. claimed a lack of memory on the critical issues. She provided substantive testimony about the incidents in question. As noted above, she initially denied the occurrence of the central events in the testimony of her grandmother and the officer. After extended redirect examination, J. acknowledged some, but not all, of the contested aspects of the incidents, holding to her denial that defendant invited her to touch his penis. There is simply no basis for a claim that defendant’s right to confront J. was in any manner impaired.

C. Failure to Instruct on Accident and Misfortune

The trial court granted defendant’s request for CALJIC No. 4.45, entitled “Accident and Misfortune,” which states generally that a person who commits an act by accident without criminal intent has not committed a crime.[4] The instruction embodied the legal theory behind defendant’s claim that J. had walked in uninvited while he was viewing a pornographic tape. Despite approving the instruction, however, the trial court did not give it. Defendant claims that the omission of the instruction constituted reversible error.

We assume that the trial court, having recognized the appropriateness of the instruction, erred by failing to give it. (See People v. Jones (1991) 234 Cal.App.3d 1303, 1314 [trial court erred in failing to deliver CALJIC No. 4.45 where substantial evidence supported the theory].) In determining whether such instructional error requires reversal, we apply the harmless error test of People v. Watson (1956) 46 Cal.2d 818 (Watson), which asks whether it is reasonably probable defendant would have achieved a more favorable result if the court had not committed error in instructing the jury. (Id. at p. 836; see People v. San Nicolas (2004) 34 Cal.4th 614, 669.)[5]

We begin with the observation that defendant was not relying on an esoteric criminal defense. As noted in People v. Corning (1983) 146 Cal.App.3d 83, 89, the legal principle enunciated in CALJIC No. 4.45 is “self-evident”; that is, the principle is in accord with a commonsense notion that accidental events are not criminal. That is particularly true in these circumstances. Few laypersons would view it as criminal for an adult to be interrupted in the act of watching a pornographic video by a child-careless, perhaps, but not criminal. This notion was the foundation of defendant’s case at trial, and his trial counsel was permitted to argue it to the jury at length.

Further, in spite of the absence of CALJIC No. 4.45, the instructions actually given by the court ruled out a conviction if the jury accepted defendant’s testimony and concluded that he was merely interrupted by J. The standard instruction covering a violation of Penal Code section 288.2, subdivision (a), delivered by the court, requires the jury to find that the defendant “knowingly exhibit[ed]” pornographic materials to a minor “with the intent of arousing, appealing to, or gratifying the lust or passions, or sexual desires” of the defendant or for the purpose of “seducing a minor.” The court not only delivered this instruction as a whole but separately discussed its elements, including the element of intent. Plainly, by finding defendant guilty of count I, the jury “necessarily rejected the evidence adduced at trial that would have supported a finding to the effect that defendant’s ‘accident and misfortune’ defense . . . was valid, thus implicitly resolving the question of that defense adversely to defendant.” (People v. Jones, supra, 234 Cal.App.3d at pp. 1315-1316.)[6] Because the court’s jury instructions, considered as a whole, excluded defendant’s conviction if the jury believed the testimony supporting his defense, the court’s failure to give an instruction expressly embodying that defense was not prejudicial.

In urging reversal, defendant relies primarily on United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196 (Escobar), which holds that the failure to instruct on a defendant’s theory of the case is reversible error per se under federal law. (Id. at p. 1201.) As innumerable cases in California demonstrate, most pertinently here People v. Jones, such a broad rule has never been adopted in our state. For the reasons discussed ante, the rationale of Escobar, that such a failure “precludes the jury from considering the defendant’s defense to the charges against him” (id. at p. 1201), is not present in this case. Because defense counsel was permitted to argue the defense and the jurors could not have convicted under the instructions given if they accepted the factual premise for the defense, the court’s instructions in no way prevented the jury from considering the defense. Accordingly, Escobar is inapplicable.[7]

D. The Probation Condition Limiting Access to Pornographic Internet Sites

Defendant contends that a probation condition prohibiting him from “access[ing] or subscrib[ing] to any computer internet service or local bulletin board service which provides access to or markets pornographic imaging unless approved in writing by your therapist and/or your probation officer” is unconstitutional because it prohibits him from any use of the Internet. As defendant argues, “all Internet service or bulletin board service provides access to markets with pornographic material.”

We need not decide whether a complete ban on Internet use would be permissible in these circumstances because we do not find the probation condition to have the broad implications ascribed by defendant. Although defendant does not discuss the rationale behind his argument, it appears that he equates the term “internet service” in the probation condition with the term “Internet service provider” (ISP), which is used in the industry to refer to a company that supplies the equipment or software that allows a consumer to connect a home computer to the Internet. If “ISP” were the intended meaning of the court’s term “internet service,” we would agree with defendant that the probation condition effectively forbids him from accessing the Internet without the prior permission of his therapist or probation officer.

We do not agree with defendant, however, that ISP is the intended meaning for the term. First, of course, the trial court did not say “Internet service provider” but “internet service,” a different term. Second, and more important, defendant’s interpretation would be inconsistent with the use of the term “bulletin board service” in the same probation condition. Bulletin boards are features of Internet Web sites that allow Internet users to “converse” and exchange information and materials. They are of concern because they are frequently used by those engaged in child pornography to share pornographic materials and to solicit underage sexual acts. (See, e.g., U.S. v. Paul (5th Cir. 2001) 274 F.3d 155, 168-169; In re Stevens (2004) 119 Cal.App.4th 1228, 1236-1238.) To make sense of the probation condition, the term “local bulletin board service” must be read to mean “an Internet Web site that provides a local bulletin board feature.” If that is true, the parallel term “Internet service” should be read as “an Internet Web site,” and the condition would prohibit defendant from “access[ing] or subscrib[ing] to any computer internet [Web site] . . . which provides access to or markets pornographic imaging.”[8]

We find further support for this reading in the nature of the court’s other probation conditions. The language of the condition was taken directly from the probation report, which contained a series of what appear to be standard recommended probation conditions for sex offenders. If the condition were intended to bar defendant from use of the Internet entirely, other conditions in the same list would be rendered unnecessary. For example, one recommended condition would prohibit defendant from e-mail contact with his victim, a restriction that would be unnecessary were he prevented from using the Internet. Two other recommended conditions expressly preclude defendant from “knowingly engag[ing] in any real-time communication over the Internet with anyone who identifies himself or herself as a minor” and from “knowingly engag[ing] in any communication over the Internet, including electronic mail, with anyone concerning the current or planned possession” of child pornography. Similarly, both would be unnecessary had the trial court intended to bar defendant from using the Internet. Yet both of these were adopted by the court as conditions of defendant’s probation. Finally, this interpretation is consistent with the trial court’s immediately prior probation condition that defendant not “possess pornographic material unless approved in advance and in writing by your therapist and/or probation officer.” Just as defendant was precluded from possessing pornographic materials without prior consent, he was precluded from visiting Internet Web sites that displayed pornography, an act that is arguably not the same as “possessing” pornography.

Not only is this narrower interpretation the most plausible, based on the language of the condition itself and the context in which it arose, but adoption of the narrower interpretation is supported by the serious constitutional issues that arise from a broad probation condition against Internet use. As discussed more fully in other decisions, the Internet has come to be not only a primary source of news and information but an important means of communication as well. Precluding a defendant from all use of the Internet therefore raises concerns under the First Amendment. (See People v. Harrisson (2005) 134 Cal.App.4th 637, 641-642; In re Stevens, supra, 119 Cal.App.4th at pp. 1233-1234; U.S. v. Sofsky (2d Cir. 2002) 287 F.3d 122, 126-127.) The construction we have adopted precludes any such concerns. (In re Stevens, at p. 1232.)

III. DISPOSITION

The judgment of the trial court is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] Defendant implies that the prosecution challenge arose as a result of the jury’s message of a possible deadlock. It appears from the trial judge’s comments, however, that the prosecutor’s request to meet with the court regarding the juror was made before the note was sent out announcing the deadlock. The prosecutor stated that she learned of the juror’s background from other employees in the district attorney’s office who recognized the juror and were aware of his history, events that necessarily happened before the note was handed out. Other than the coincidental timing, there is no evidence to support an inference that the prosecution was attempting to break the deadlock.

[2] Subsequently, J. also testified both that she did not know whether defendant had touched himself and that she had told her grandmother that defendant had masturbated. The fact that she later testified inconsistently with her own testimony does not make the prior statements consistent with her testimony.

[3] J.’s mother testified at trial that she did not want defendant prosecuted and believed defendant’s account of an inadvertent discovery rather than her daughter’s claims. The tension this created could also have affected J.’s willingness to testify fully.

[4] As given to the jury, CALJIC No. 4.45 states: “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, he does not thereby commit a crime.”

[5] Defendant contends that the proper measure of prejudice should not be the Watson standard but the constitutional standard of Chapman v. California (1967) 386 U.S. 18. While we do not agree that Chapman states the applicable standard, we find no prejudice under either Watson or Chapman for the reasons stated in the text.

[6] The lesser included offense of Penal Code section 313.1, subdivision (a) of which defendant was convicted on the second count, merely requires a defendant to “knowingly exhibit” pornographic materials to a minor, an element that would also rule out accident. The court properly instructed on this charge.

[7] Despite the unconditional language of Escobar, the Ninth Circuit itself follows a similar rule to California’s. (E.g., U.S. v. Zuniga (9th Cir. 1993) 989 F.2d 1109, 1111 [“The trial court, however, is not required to give a particular instruction regarding the defense’s theory of the case so long as the court’s instructions adequately cover the subject. If the instructions adequately cover the theory of the defense, there is no error]”; Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 743 [same].)

[8] It is sensible to refer to commercial Internet Web sites as “services,” since services are precisely what they provide. The terms “access[ing] or subscrib[ing] to” also make sense when used in this manner because some pornographic Web sites require a paid subscription.