Filed 10/24/17 P. v. Jimenez CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sutter)

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A jury found defendant Javier Jimenez guilty of two counts of child abuse. On appeal, he contends prosecutorial misconduct undermined his right to a fair trial. He argues the prosecutor committed misconduct by showing unauthenticated images of child pornography during her opening statements, by failing to turn over exculpatory evidence, and by misrepresenting her knowledge of that evidence. We conclude the prosecutor’s conduct did not prejudice defendant and therefore affirm.

BACKGROUND

Defendant was charged with sexually abusing his girlfriend’s daughter and son. At trial, evidence of uncharged misconduct was introduced, including defendant molesting a third victim and defendant possessing child pornography on his computer.

The son testifies

The son, who was twelve years old at trial, testified defendant had touched him inappropriately when he was nine. On Halloween, defendant told him to come into his room. Defendant said he wanted to make sure his penis was clean. He made the son undress and lie on the bed. Defendant put a pillow over the child’s face and sucked his penis. Defendant told him not to tell anyone.

It happened a second time before Thanksgiving. Defendant said he wanted to make sure the boy was clean. He made him undress and lie on the bed. He put a blanket on his face and sucked his penis. In January, he did the same thing. The son told his mother about it soon after.

The daughter testifies

The daughter, who was sixteen years old at trial, testified defendant had touched her inappropriately. When she was six, defendant took her from her bed, into the living room. He laid her on top of him, took out his penis, and made her try to touch it.

Another time, when she was six, defendant brought her to his bedroom and tried to put his penis inside her vagina. When she was seven, he put his tongue in her vagina.

When she was nine, defendant told her to come into his bedroom. There, he forced his penis into her anus. It felt “[l]ike something was tearing my anus open.” Several months later, he did it again. She testified he put his penis in her anus on 5 to 10 occasions. And he put his penis in her vagina on 10 to 20 occasions.

Three days before defendant was arrested, while they were driving, defendant put his finger in the daughter’s vagina. She told her mother the day after defendant was arrested. A prior summer, she had told her older cousin defendant was touching her, but she told her cousin not to tell.[1]

The daughter of a former girlfriend testifies

The daughter of a former girlfriend of defendant testified defendant touched her inappropriately. When she was nine, defendant placed his hands over her sports bra and massaged her breasts for several minutes. On another occasion, he placed his hands under her sports bra.

When she was 11 or 12, he asked her to come into his bedroom. He told her she needed to be taught how to be clean. He asked her to take off her pants and underwear and laid her on the bed. He lifted her legs, repeating that she needed to be taught how to be clean. He put his fingers in her vagina, pulled them out, and showed her his fingers saying, “this is why you need to be clean.” He reinserted his fingers and said she needed to keep better hygiene and keep herself clean.

The mother testifies to finding child pornography on their shared computer

The mother of the two sibling victims testified that around 2006, she saw an open Website on their shared computer, displaying images of young girls performing sex acts with men and each other. The girls appeared to be between adolescent age and high school age. When she asked defendant about it, he said, “it’s nothing.”

An expert testified to finding child pornography on defendant’s computer

A detective computer forensic expert testified to finding child pornography on defendant’s computer. He found 73 child pornography images in an Internet cache file.[2] He also recovered 174 child pornography images that had been deleted. The 73 images in the cache depicted girls appearing to be from 5 to 16 years old. Some were engaged in sex acts. While the expert testified, 8 of the images were shown to the jury.

The expert testified that, of the 73 images in the cache file, the bulk of them were downloaded to the computer in 2008. Others were stored into the computer in 2011 and 2012. For the 174 deleted images, their creation or deletion date was not ascertainable. The computer had file sharing software installed, including LimeWire, a file sharing program.

The computer had a password protected user account, “Javier.” The password for that account was changed on April 21, 2009. Neither the mother nor the children had the password. The mother testified the computer was in the “man cave” garage and defendant had “put it in.”

Verdict and sentencing

The jury found defendant guilty of orally copulating a child (the son) 10 years of age or younger (Pen. Code, § 288.7, subd. (b); count 1) and committing lewd or lascivious acts on a child (the daughter) under 14 (Pen. Code, § 288, subd. (a); count 3). The jury also found defendant had had substantial sexual conduct with the victim under 14. (Pen. Code, § 1203.066, subd. (a)(8).) But the jury deadlocked on count 2, sexual intercourse or sodomy with a child (the daughter) 10 or younger.

Following the verdict, defendant brought an unsuccessful motion for retrial. The trial court thereafter imposed a prison term of 15 years to life on count 1 and the middle term of 6 years on count 3, to be served consecutively.

DISCUSSION

I

Showing Images of Child Pornography During Opening Statements Was Harmless

Defendant first contends the prosecutor engaged in prejudicial prosecutorial misconduct by showing child pornography images in her opening statement to the jury.

A.

The Prosecutor Shows the Jury Child Pornography Images During her Opening Statement

Prior to her opening statement, the prosecutor moved, under Evidence Code section 1108,[3] to introduce evidence of defendant’s possession of child pornography. Over defense counsel’s section 352 objection, the trial court found the probative value far outweighed the prejudicial effect, given the child pornography depicted sex acts in which defendant was alleged to have engaged. The court allowed the images without further hearing but asked that they not be cumulative. The prosecutor replied she would select fewer than 15.

In her opening statement, the prosecutor explained that over 70 images of child pornography had been found on defendant’s computer. She then showed the jury eight of the photos, saying they would be discussed by the investigating detective. She added, “[T]his evidence will give you a glimpse into what was going on in that household.” Defense counsel did not object.

Returning from a break, the trial court admonished counsel it expects professionalism: “Case in point, . . . the purpose of the opening statement is to help the jury understand the case to be presented. It is unusual to show evidence to the jury before the trial begins. [¶] This Court was surprised to see that the photographs that were shown to the jury during opening statement were shown; . . . even though the Court ruled that the photographs would be relevant to the case, no foundation has been laid yet that those photographs were the photographs that were found on the computer.”

The court continued: “[t]he prosecutor has already admitted on the record that another piece of evidence was sought to be introduced to show that the defendant is a bad person,[[4]] so the Court is very unhappy that those photographs were part of the opening statement presentation. They have not been admitted; no foundation has been laid; and the Court, as I have said, cannot think of a reason to show them to the jury at that stage except to inflame the jury.”

The prosecutor explained she had shown the photos because she was “providing a roadmap of the entire evidence that the People planned to show, including the [section] 1108 evidence, which is very critical in a case like this where there is no pretext call admission, there’s no DNA evidence, there’s no medical evidence, except two children testifying.”

The court asked, “Why wouldn’t it have been sufficient for you to tell the jury you are also going to see images that were taken from the defendant’s computer depicting children in various sexual acts?”

The prosecutor responded, “I am sure that it could have been enough . . . .” She added, “the reason I believe it was necessary was because it provided a complete picture of the evidence that will come forward . . . .” The court responded that it “can’t think of any reason but to inflame the jury and to cause the jury to tend to believe that the person who possessed those things is a bad person . . . .”

Following the verdict, defendant moved for a new trial on grounds that included the prosecutor’s showing child pornography to the jury in opening statements. Denying the motion, the trial court noted its concern the images were shown before a foundation was laid and with the prosecutor’s overall tactical decision to show the images in opening statements. But the court noted it had not found a case saying it is misconduct to do so. It added, “So there’s no misconduct there, at least there’s no violation of the law there.”

B.

The Parties’ Contentions

On appeal, defendant argues the prosecutor used the child pornography images to unduly influence the jury as to his bad character and propensity. He avers that by including the evidence in the opening statement, the prosecutor deliberately prevented defendant from developing a defense to the evidence.

The People respond that the challenge is not preserved, and in any event the People have found no law indicating that showing child pornography during opening statements amounts to prosecutorial misconduct.

C.

Applicable Law

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)

To preserve a prosecutorial misconduct challenge, a defendant must timely object and request a jury admonishment to disregard the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820.) But a challenge is not forfeited if a timely objection or request for admonition would be futile, or if an admonition would not have cured the harm from the misconduct. (Ibid.)

D.

Application

We are mindful that, in opening statements, a prosecutor may use photos and recordings that are intended later to be admitted, as visual or auditory aids. (See People v. Wash (1993) 6 Cal.4th 215, 257.)

We will assume without deciding the challenge is preserved and showing unauthenticated child pornography images to the jury during opening statements was prosecutorial misconduct. We nevertheless conclude that conduct was harmless to defendant.

Several factors mitigate the purported prejudicial effect of the conduct. Before opening statements, the prosecutor had obtained a ruling, over defendant’s objection, that the images were admissible. The images were ultimately admitted and shown to the jury during witness testimony. And given the nature of the evidence of the charged conduct, the fact the jury saw child pornography images one additional time was not likely the determinant factor in the jury’s verdict. Accordingly, the conduct was not prejudicial.

II

The Failure to Turn over Evidence to the Defense was Harmless

Defendant next contends the prosecutor engaged in prosecutorial misconduct in failing to provide the defense with certain evidence and in making misstatements to the court regarding her knowledge of that evidence.

A.

The Prosecutor Fails to Provide a Printout of Child Pornography Search Hits Found on Defendant’s Computer to the Defense

The detective computer forensic expert, who had located child pornography contained on defendant’s computer, testified he had searched defendant’s computer for search terms associated with child pornography. He explained images may have several “tag words” associated with them. He had located numerous such terms associated with child pornography on defendant’s computer.

During that testimony, defense counsel asked to see what the expert was reading from. The court interjected, “Hopefully, it’s something that has already been provided to you in the voluminous packet that you’ve received.” The prosecutor responded, “this is something the defense hasn’t seen.”

The prosecutor explained she had received a packet from the detective that morning and had made a copy for herself. She only looked at the first page, which was a “cheat sheet” of child pornography “search terms.”

Outside the jury’s presence, the detective explained the packet was a printout of screenshots of hits from a search for child pornography search terms on the computer. One such hit read, “new five YO lap dance PTHC,” with the term “PTHC” (pre teen hard core) highlighted by the software. The images associated with the hits could not be viewed. The images had been obtained using LimeWire, which had been installed on the computer in April 2010.

The detective had generated the printout the previous week, in preparation for trial. He wanted to “solidify the fact that this computer had generated child porn, and that . . . it had resided on this computer.” He added, the district attorney’s office had not asked him to generate the printout and the information it contained was not included in what was given to the defense.

Defense counsel requested a mistrial arguing a Brady[5] violation. The prosecutor argued the printout was not exculpatory evidence, and the fact child pornography was saved to defendant’s computer was discovered to the defense three years ago. She added: “This search term information was brought to the court today. I have not examined it, but I asked about it because I am still learning, like I just learned just now that LimeWire was installed on April 2010. I did not know that either.”

The trial court ordered the jury to disregard any testimony regarding the search terms and the printout.

B.

Defendant Moves for New Trial

After the verdict, when defendant moved for a new trial, he raised the issue of the prosecutor’s failure to turn over the printout. The prosecutor filed an opposition, stating, inter alia, that “[t]he information that Limewire was installed on this computer was new information that the Prosecutor did not have prior knowledge of until this day.”

Two months later, the district attorney’s office filed a supplemental response. Attached were several e-mail exchanges between the detective and the prosecutor. In one exchange, sent five days before the detective testified, the detective wrote in response to the prosecutor asking which peer to peer sites defendant used: “I found PTHC (pre teen hard core) with file names consistent with cp on Limewire. He also had BearShare, eMule, and UTorrent, but I haven’t found anything with those sites yet.”

The trial court held a hearing on the motion for a new trial, and the detective testified. The detective testified he recalled telling a defense investigator the prosecutor had misrepresented her knowledge regarding the exhibits to the judge. He also recalled telling the chief investigator with the District Attorney’s office the prosecutor was trying to blame him for the last minute discovery.

Defense counsel argued he had learned for the first time during trial that pornography on defendant’s computer predated defendant’s first login. He added, the prosecutor knew the photos recovered predated defendant’s use of the computer. And had the defense known of the report, he would have objected to the use of child pornography in the case, unless it was established defendant possessed the computer when the images were downloaded.

Opposing the motion, a different attorney from the district attorney’s office conceded the prosecutor knew of the information contained in the detective’s printout before the hearing. The attorney added, “frankly, only the Court can say if having knowledge that [the prosecutor] knew the information prior to [the detective] testifying would have resulted in a different outcome . . . .” The substitute prosecutor also asked that inaccurate statements filed in the prosecutor’s opposition to the motion for a new trial be stricken.

The trial court denied the motion for a new trial, finding the prosecutor’s conduct had not deprived defendant of his right to a fair trial. As to the late discovery, the court explained, “it does appear that [the prosecutor’s] comments to the Court [at trial] on November the 10th were shaded in a way to not fully disclose the truth.”

The trial court continued, “So, as I understand it . . . this was information pulled from the computer that provided the pathway that wound up causing the child porn to appear on this computer . . . .” “Where I have a problem with what [the prosecutor] did . . . is that she thought it was important enough to make a copy for herself but not important enough to make a copy for [defense counsel] . . . .” “t certainly should have been discovered to [defense counsel] . . . . How helpful it would have been to [defense counsel], I don’t know, because the issue was whether or not the pornography was on the computer, not how it got there . . . .” It noted, “The fact that the . . . password was created on April the 21st, 2009, doesn’t necessarily mean that [defendant] didn’t have access to the computer prior to then.”

[i]The Parties’ Contentions

On appeal, defendant argues the evidence the prosecutor failed to disclose was material and exculpatory because it demonstrated the child pornography was inadmissible. He asserts the defense learned for the first time during the detective’s testimony that the images were from 2008, certain terms had been used to search for child pornography, and LimeWire was installed on the computer. He argued the earliest date the state could prove defendant was active on the computer was April 2009. Defendant concludes the evidence was exculpatory because it demonstrated the child pornography evidence was inadmissible.

The People concede the prosecutor committed prosecutorial error in failing to provide the search term summary created by the detective and in misrepresenting her knowledge of the summary to the court and counsel. But the People maintain, defendant did not establish a reasonable probability of a more favorable result but for the discovery violation.

D.

Analysis

We review a Brady, supra, 373 U.S. 83 challenge de novo — though the trial court’s findings of fact are given great weight when supported by substantial evidence. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) We will vacate a conviction, without a harmless error review, if the undisclosed evidence is material. (In re Brown (1998) 17 Cal.4th 873, 903.) “Evidence is ‘material’ if there is a ‘reasonable probability’ that the outcome of the trial would have been different had the evidence been disclosed, which occurs when the undisclosed evidence ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” (Ibid.; See Salazar at p. 1052.)

We conclude the printout was not material. As the record reflects, the printout simply provided additional evidence child pornography resided on the computer. Specifically, it was a list of child pornography search term hits from defendant’s computer. That list indicated child pornography had been downloaded using LimeWire file sharing software. While that information should have been disclosed for Brady, supra, 373 U.S. 83 purposes, it was not material as its effect was cumulative given actual images of child pornography were recovered from the computer and admitted as evidence.

Defendant’s argument that the information would have established the child pornography was inadmissible is not well taken. It rests on the faulty assumption the user account password change on April 21, 2009 establishes defendant did not use the computer before that date. That is pure speculation.

Moreover, even assuming arguendo defendant did not own the computer before April 21, 2009, the expert testified about child pornography images copied to the computer in 2011 and 2012.

In sum, while failing to provide the evidence to the defense was prosecutorial misconduct, under the circumstances it was harmless.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

MURRAY, J.