P. v. Krivashei










Filed 4/25/17 P. v. Krivashei CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ISAAC KRIVASHEI,

Defendant and Appellant.



G052361

(Super. Ct. No. 12HF3004)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed.
Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Isaac Krivashei of two counts of lewd acts on a child and one count of possession of child pornography. The court imposed a prison term of 10 years and eight months, consisting of the upper term of eight years on count 1, and consecutive two-year term on count 2, and eight months on count 3.
Defendant challenges the court’s denial of his motion to suppress evidence. We agree the court erred in part. Nevertheless, we find the error harmless beyond a reasonable doubt and affirm the judgment.
FACTS
1. Background
Defendant married D.K. in 1977, and he worked as a school photographer. D.K. had two children, L.K. and K.K. Defendant also had two sons from a previous relationship, E.K. and Ke.K. K. Eventually, L.K. had three children and E.K. married A.K. and they had two children, B.K. and C.K..
In August 2012, B.K., now 16 years old, left a note on A.K.’s pillow. B.K. accused defendant of raping and molesting her when she was a child. She explained how she had been too young to understand defendant’s behavior “wasn’t normal,” and she repeatedly apologized for not telling her mother before. B.K. said she felt ashamed and hurt. She begged her mother not to tell anyone, and said she never wanted to see defendant again. B.K. said she told three of her friends about the abuse, M., Y., and D., and her friends confirmed this statement.
B.K.’s note led E.K. to contact other family members. As a result, K.K., now 42 years old, disclosed additional sexual abuse by defendant when she was a child. On August 21, K.K., E.K., and A.K., went to the police, and K.K. reported the incident.
Four days later, K.K. made a covert call to defendant. Defendant admitted coming into her bedroom in the morning and putting his fingers between her legs and into her vagina. He also admitted kissing, hugging, and grabbing K.K. and squeezing her breasts.
During the call, defendant also admitted tickling B.K.’s backside and belly when she did not have her pants on. However, defendant said B.K. pulled off her pants and asked to have her backside tickled.
When questioned by police later the same day, defendant said B.K. ran around naked and he admitted tickling her and helping her bathe. He told the officers what he admitted to K.K. during the covert phone call was private, and he would not talk about it.
Defendant was placed under arrest. He consented to the seizure of his computer, laptop computer, computer equipment, and phone. The police seized four tower computers, one laptop computer, six external hard drives, 23 flash drives, nine memory sticks, two iPhones, two mini-discs, one digital camera with memory stick, one video recorder, and 12 VHS tapes.
A warrant to search the seized property issued one mother later.[1] A forensic computer analyst searched five computers and six external hard drives, but none of the other seized items. Police discovered thousands of photographs of partially clad children and hardcore child pornography on two of the external hard drives and three computer towers, including pictures of his grandchildren.
In September, police contacted L.K. in an effort to interview her three children. L.K. did not initially cooperate. However, after an officer showed her pictures of her children recovered from defendant’s computers, she changed her mind.
2. Trial Testimony
a. Prosecution
L.K. testified about an incident that occurred when she was about 16 years old. While she, D.K., and K.K. were standing and joking around with defendant, he suddenly reached out and grabbed her breast. L.K. was shocked, but defendant and D.K. laughed about it.
B.K. recounted numerous occasions between the ages of seven and 10 when defendant made her touch his penis or put his mouth on her vagina, and then told her not to say anything. On one occasion, defendant got into the shower with her and made her hold his penis.
B.K.’s friends, M., Y., and D., testified B.K. confided in them before the police were called. M. said B.K. told her about the incident in the shower and B.K. said defendant orally copulated her. B.K. told D. defendant used his hands and tongue to touch her vagina, and he made her hold his penis. Y. encouraged B.K. to tell her parents.
K.K. testified pursuant to Evidence Code section 1109. She regarded defendant as her father. However, about the time she turned about ten years old, defendant started to engage in “horseplay.” Horseplay meant defendant pinned her down and touched her buttocks, breasts, and crotch. When she was 13, defendant put his hand down her pants and inserted a finger into her vagina. On another occasion, he touched her breast while he thought K.K. was asleep.
K.K. told her mother about defendant’s improper touching when she turned 17. Her mother did not believe her and tried to substitute an innocent explanation. K.K. did not tell anyone else until 2012 when she disclosed the abuse to her fiancé. After defendant did not come to a large family gathering, K.K. talked to him on the phone. Defendant was angry and accused K.K. of lying. Sometime later, defendant again talked to K.K. on the phone, but this time he admitted molesting her by pinching her buttocks during horseplay, and touching her vagina. The covert call was made about two weeks later.
The forensic computer analyst testified at trial. He said about 30 percent of the images discovered depicted hard core child pornography and 60 percent partially clad or nude minors. The prosecution introduced about 40 of the thousands of photographs or digital images from defendant’s external hard drives and tower computers.
b. Defense
Defendant called an expert witness to testify about the dangers of suggestive questioning with young children, and the expert criticized the interview techniques used by the police during B.K.’s interview. The expert also said K.K.’s allegations could have affected B.K.
A therapist K.K. saw when she was a teenager testified he would have been forced to report any complaints of sexual abuse if K.K. had made one. He did not recall making such a report, nor did he have a record of making one. However, the doctor’s records had been destroyed, and he had no specific recall of any aspect of K.K.’s case.
DISCUSSION
1. Motion to Suppress
a. Background
Defendant moved to suppress the photographs and digital images discovered on his seized property. He argued the officers exceeded the scope of his consent, and the illegality could not be cured by the subsequent issuance of a search warrant.
Defendant submitted a partial transcript of his conversation with Investigators Kaesman and Jasper from the Orange County Sheriff’s Department prior to the search. He also attached the property receipt and the search warrant affidavit with his motion. The parties submitted on the documents and argument. No witnesses were called.
In the partial transcript, Kaesman first asked defendant if he was a school photographer. Defendant answered in the affirmative. Kaesman asked if defendant had a computer and a laptop. Defendant said his computer and laptop were in a room, and he refused the officer permission to enter the room.
Kaesman said, “Let me just tell you this. I am going to collect because I believe that there may be some evidence on your laptop and in your computer.” Defendant interrupted, but Kaesman continued,” I am going to collect your computer and your laptop . . . you can give me your – your consent right now and your permission to collect it right now, or if you don’t want to do that – and that’s certainly your right. You can do that.
“What we will do is we will freeze the house, and basically we will have somebody stay here. I will go to my office. And I will write a search warrant outlining . . . my probable cause and my reasoning to a judge on why I think that I need to collect those items, which I’m not going to get into – into right now with you but if – if a judge says, yes, you have probable cause, then I can come back, and I will collect those items.
“The judge, if he says, no, you don’t have probable cause to collect those items, then I can’t take them. I don’t know what a judge is going to do. He will either say yes, or he will say no.
“So those are the . . . two options.”
Kaesman further explained it might take three or four hours to obtain the search warrant, and no one would be allowed to enter the home until the warrant was issued or denied. Defendant asserted he had jobs lined up, a training session coming, and contracts to fulfill. He asked if the police needed to physically take the computers, and Kaesman said, “Yes, we have to because I believe that there are items of evidentiary value on the computer and on your laptop and possibly on your phone. So that’s why I need to . . . take those items.”
Kaesman repeated his offer to obtain a search warrant, but reminded defendant he would have no access to his home while they waited, and it would take several hours. Defendant asked if he could go with the officer to get the computers. The officer responded if defendant consented, they would “collect them,” and prepare a receipt.
Kaesman explained, “So you . . . can give me permission to collect the computer equipment or not, and if – if not, then I’ll prepare a search warrant. And if a judge agrees with me, then he’ll allow me to collect that computer equipment.” A few moments later, the officer said, “The faster I collect the computer equipment, then the faster that we can get out of here. So do I have your permission?” Defendant responded, “Yes, you have my permission.”
b. Standard of Review
“The standard of review on a motion to suppress is well established. The appellate court views the record in the light most favorable to the ruling and defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. But in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, the appellate court exercises its independent judgment. [Citations.] Appellate review is confined to the correctness or incorrectness of the trial court’s ruling, not the reasons for its ruling. [Citation.]” (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1011.)
“‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” [Citation.] ‘Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of [the] circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court’s determination.” [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 983-984.)
“The touchstone of the Fourth Amendment is reasonableness. [Citations.] As explained in Illinois v. Rodriguez (1990) 497 U.S. 177, 183, the Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely condemns those which are unreasonable. Reasonableness is determined by balancing ‘the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ [Citation.] [¶] “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]’ [Citation.] Generally, the scope of a warrantless search is defined by its expressed object. [Citation.] A consensual search may not legally exceed the scope of the consent supporting it. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court’s determination.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)
c. Analysis
The police seized the tower and laptop computers, six external hard drives, 23 flash drives, nine memory sticks, two iPhones, two mini-discs, one digital camera with memory stick, one video recorder, and 12 VHS tapes. Defendant asserts he consented to the seizure of “one computer, one laptop and one phone.”
The court concluded otherwise: “I don’t mean to play semantics. But when you look at the property receipt and ultimately when you look at the two items that were searched, the two external drives, do those fall – fall within the somewhat broad umbrella of computer equipment? The court would say yes.” The court acknowledged the cameras, video recorder, and VHS tapes were a close call, but the court also pointed out the other items produced no admissible evidence.
The court’s ruling goes too far. During Kaesman’s discussion with defendant, he used the words computers, laptop computers, a phone, and computer equipment and said he was looking for evidence related to crimes. The words computer, laptop computer, and computer equipment refer to a type of electronic device, which logically includes various computer peripherals like computer towers and external hard drives. Under an objective standard of reasonableness, defendant should have understood his computer towers and external hard drives would be seized when he gave his consent to seize computer equipment.
On the other hand, no objectively reasonable person would have understood computer equipment to also include the video camera, VHS tapes, digital cameras with memory sticks, and video recorders. Although these items come under the general heading of electronic devices, they are designed for and serve very different purposes than a computer or computer equipment. Thus, the seizure of these items exceeded the scope of defendant’s consent.
Nonetheless, a violation of defendant’s Fourth Amendment rights does not trigger an automatic reversal. “We assess federal constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Under Chapman, we must reverse unless the People ‘prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.]” People v. Valenti (2016) 234 Cal.App.4th 1140, 1165-1166.) The People have met their burden here.
In this case, the police seizure of items outside the scope of defendant’s consent had no impact on the trial. The People did not obtain any evidence as a result of the violation. The child pornography was found on properly seized computer equipment. In the most basic sense, the violation of defendant’s Fourth Amendment rights had no impact on this trial.
In addition, substantial evidence supports counts 1 and 2 without evidence of child pornography. B.K. described the acts alleged in counts 1 and 2 in detail. Unless physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Plus, the prosecution presented the compelling testimony of K.K. and L.K. Their testimony established defendant was predisposed to sexually abusing children, and he admitted the conduct with K.K.. (Evid. Code, § 1109.)
The People relied on the child pornography to prove defendant’s intent, but there was also other ample evidence to prove this element of the offense. Thus, “‘other evidence of [defendant’s] guilt was so overwhelming that the alleged error was harmless beyond a reasonable doubt.’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 847), overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)

DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.



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[1] Defendant did not traverse the warrant below, or challenge the voluntariness of his consent. We express no opinion about the adequacy of the warrant affidavit, and address only the scope of defendant’s consent.