>P. v. Smith
>
>
Filed
5/20/13 P. v. Smith CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ROY SMITH, Defendant and Appellant. | F063679 (Fresno Super. Ct. No. F09905046) >OPINION |
APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno County. Arlan L. Harrell, Judge.
Deborah L. Hawkins, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Leanne LeMon and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Robert Roy
Smith (defendant) was charged with one count of possession or control of href="http://www.fearnotlaw.com/">child pornography with a prior. (Pen. Code, § 311.11, subd. (b).) The information also alleged three prior
serious felony “strikes.†(Pen. Code §
288, subd. (a) [two prior convictions]; Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1]
§ 288a, subd. (c)(1) [one prior conviction].)
Defendant
eventually admitted the prior conviction allegations. Following trial, a jury convicted defendant
as charged. The superior court struck
one of the strikes and sentenced defendant to a prison term of 25 years to
life.
Defendant
appeals, contending that “late†disclosures by the prosecution constituted
discovery violations and infringed on his right
to a fair trial. Defendant further
claims that the exclusion of testimony regarding his prior diagnosis and
treatment as a sex offender was error.
We reject both contentions and affirm.
FACTS
Keri DeAlba’s
Testimony
At trial,
Keri DeAlba testified that she worked as a behavioral specialist at the Golden
Gate Center (the “Centerâ€), which is part of the Vocational Education Center at
Coalinga State Hospital. DeAlba had
daily contact with the defendant, who was a patient at the hospital.
The Center itself is a recreation
room where patients work on computers, play pool, and use musical
instruments. DeAlba’s job duties included
monitoring patients’ use of the computers to ensure that “everything was
appropriate.†Patients were not
permitted to view images of any kind on the computers, which were solely for
treatment-related work.
On February 26, 2009, DeAlba
observed defendant using the same computer he sat at “every day.†DeAlba saw defendant “cycling throughâ€
several pictures, including one of an unclothed “little boy,†and another of an
unclothed “little girl.†Defendant had
two “thumb drives†plugged in to the computer’s tower. DeAlba phoned state hospital officerhref="#_ftn2" name="_ftnref2" title="">[2]
Michael Bassi, who was stationed nearby in the vocational center, and told him
to come quickly. DeAlba then told
defendant to give her his thumb drives.
Defendant said, “Please don’t. Please, Keri, don’t. Please, please don’t.†DeAlba gave the thumb drives to Officer
Bassi. Defendant left with Officers
Bassi and Palacios and said, “I’m busted.â€
>Officer Bassi’s Testimony
The thumb drives were then plugged
into the computer of an investigator with the police department’s office of
special investigations. One of the
drives was Emprex brand (the “Emprex driveâ€).
The other drive was Kingston brand (the “Kingston driveâ€).
On the Emprex drive, there were
multiple images of young children performing sexual acts. On the Kingston drive, Officer Bassi saw four
to five nude pictures of boys and girls.
There were other files on the Kingston drive that were not child
pornography.
Officer
Bassi’s Interview With Defendant
After leaving the investigator’s
office, Officer Bassi went to interview defendant. Officer Bassi recorded the interview, and the
recording was admitted into evidence at trial.
During the interview, defendant
indicated that the “smaller†thumb drive contained “probably four pictures†of
“nude children†(i.e., “young girls.â€)
The rest of that drive’s contents were files related to defendant’s
treatment.href="#_ftn3" name="_ftnref3" title="">[3]
Defendant described “the otherâ€
drivehref="#_ftn4" name="_ftnref4" title="">[4]
as being “loaded.†Defendant described
the drive’s contents as follows:
“Well there’s [>sic] a couple of files that have nude
boys which are not my interest but that’s they, they [sic] just happened to be there.
Uh most of them are nude girls uh there’s some hard core child porn on
there. In more than one file I can’t
tell you how many because I don’t, I really don’t remember.â€href="#_ftn5" name="_ftnref5" title="">[5]
Defendant later testified at trial
that all of the answers he gave in the
interview were true.
Officer
Bassi’s Testimony Regarding the Kingston Drive
Officer Bassi also testified as to
whether there was child pornography found on the
Kingston drive. His
testimony in that regard included the following exchanges:
1.
“[Prosecutor:] And
on the Kingston drive, did you actually see any images
or
videos on that drive?
“A There were images, no videos, on
the Kingston drive.
“Q Okay. And the images that you saw,
do you recall what type of images they were?
“A They were four to five nude
pictures of boys and girls.
“Q Do you recall if any of the
pictures in the Kingston drive involved any kind of penetration?
“A I don’t think so. They were just nude. [¶] … [¶]â€
2.
“[Defense counsel]:
Now, these thumb drives – and I’m going to kind of jump around a little
bit. These thumb drives, 11(a) and 11(b), these are still, I mean, fully loaded
with illegal child pornography, right?
“[Prosecutor]: Objection.
Calls for speculation.
“THE COURT: Overruled. You can answer, sir.
“THE
WITNESS: They should be, yes. [¶] … [¶]â€
3. “[Defense counsel:] Okay.
So this one given to the phasers is smaller than the Emprex drive. You viewed a little bit, or small material,
child pornography material on both of these; is that right?
“A That’s correct. [¶] … [¶]â€
4. “[Defense counsel:] Officer Bassi, the Emprex drive is the lower
silver one there, right?
“A That’s correct.
“Q And that is the one that had most
of the material, the child pornographic material on it, right?
“A Yes.
“Q There was also some found on the
blue and white drive, that is, the Kingston drive that is assigned to the
phasers, right?
“A Correct, four to five
pictures. [¶] … [¶]â€
5.
“[Prosecutor:]
Would finding pictures of naked children on a drive cause you to want to
look to see if there were pictures of sexual acts?
“A Yes.â€
The
prosecutor would eventually state during closing argument that the Kingston
drive, in fact, had no child pornography on it.
September 19, 2011,
Hearings
At a
hearing outside the presence of the jury on September 19, 2011, defense counsel
indicated that the prosecutor had handed him a CD and documents labeled
attachments F-K (the “supplemental reportâ€href="#_ftn6" name="_ftnref6" title="">[6])
that morning at 10:39 a.m.href="#_ftn7"
name="_ftnref7" title="">[7] The documents were the products of analyses
performed by a Detective Wiens. Defense
counsel conveyed that he was told (presumably by the prosecutor) that the
documents showed how many times the names “Bob, Robert, Robert Smith†appear on
the Emprex drive. He was also told that
Detective Wiens would be testifying “off†the documents. The prosecutor confirmed that she had “justâ€
handed the information to defense counsel.
She said she turned it over “pretty much the moment I received it. If you recall, Mr. Spence did come in and
handed some documents to the bailiff, who handed them to me.â€href="#_ftn8" name="_ftnref8" title="">[8] She confirmed that the reports regarded
searches on the Emprex drive for “Bob, Robert Smith, Smith, things of that
nature.†She also indicated that the
documents also showed what files were duplicated between the Emprex drive and
the Kingston drive using “hash values.â€href="#_ftn9" name="_ftnref9" title="">[9] The prosecutor indicated that she had asked
for the analysis on the previous Friday “because of [defense] counsel’s clear
line of questioning going towards the Emprex drive not being the
defendant’s. And it is clear that is
where he is going.†The prosecutor
further stated that defense counsel had access to the contents of the Emprex
and Kingston drives “for over a year.â€
The court stated
that it would allow each side to review the documents. Defense counsel requested that, “[a]t the
bare minimum,†the court direct that no reference be made to the “additional
discovery†until the next morning. After
further discussion between counsel and court, it was agreed that Detective
Wiens would not testify later that day as planned. Instead, he would testify the next morning.
In a
session later that day, the court and counsel again discussed the recently
disclosed documents outside the presence of the jury. Defense counsel did not move for a
continuance, but did indicate that he would not have time for an expert to look
at the material by the next morning. He
stated that his client had a right to a fair trial.
The
prosecutor argued that there was no new information in the supplemental report,
which was just a different way to analyze the same material referenced in
Detective Wiens’s initial report.
Defense counsel responded by analogizing the situation to a late
disclosure of a spreadsheet in a financial fraud trial:
“We’ve got this
huge amount of data. But that is fine,
I’ve got access to all this data for a while.
But to come up with a new summary of this data, to have new reports of
this data this late in time, it does not give me an adequate chance to respond
to it .…â€
The following colloquy between the
court and defense counsel ensued:
“THE
COURT: Attachments F through L, which
both sides received during the course of the testimony this morning. They were brought into the court, given to
Ms. Clinton [prosecutor], and then in turn given to Mr. Baly [defense
counsel]. That took place, that Mr. Baly
first received them, at about 9:39 this morning. I have not heard anyone represent that this
is anything other than an analysis of the search of the content of a digital
copy of the thumb drives that each counsel received by way of the
discovery. Is there any disagreement
with that statement?
“MR.
BALY: Could you – I apologize, would you
restate the statement? You said list, I think.
“THE
COURT: I’ve heard no one represent that
this information is anything other than an analysis of the search of the
content of a digital copy of the thumb drives which is contained on the CDs
that each counsel received by way of discovery.
Is that accurate?
“MR. BALY: I agree.…â€
The court ruled the supplemental
report was admissible, and that the analysis went to ownership of the drives,
not content of the drives.href="#_ftn10"
name="_ftnref10" title="">[10]
>Detective Wiens’s Testimony
Detective Wiens testified that he
located approximately 1,100 images of child pornography on the Emprex
drive. Detective Wiens had seen
approximately 80 percent of the images in prior investigations. The images depicted children younger than 18
years old. Detective Wiens also found a
video file approximately 47 minutes in length.
The video depicted different segments of href="http://www.fearnotlaw.com/">child pornography videos that Detective
Wiens had seen in the past.
The Emprex drive also contained
approximately 10,000 text and Power Point documents. Detective Wiens searched the properties and
content portions of the files for certain strings like “Bob†and “Robert.†Detective Wiens found 295 documents with the
name “Bob†either in the properties or body of the documents.href="#_ftn11" name="_ftnref11" title="">[11] By comparing the hash values of various
files, Detective Wiens determined that 6,200 of the exact same files were found
on both the Emprex and Kingston drives.
Detective Wiens testified that
there was no child pornography on the Kingston drive.href="#_ftn12" name="_ftnref12" title="">[12]
>Defendant’s Testimony
Defendant testified that another
patient gave him a CD or a DVD with child
pornography on it.
The patient told him, “There’s some good stuff on here you might want to
see.†Defendant understood that the CD
contained “child pornographic material.â€
He viewed the video contained on the CD and looked at between 1,000 to
2,000 images. He saw that the CD
contained child pornography. He later
transferred the CD’s contents to his Emprex drive. Thus, on February 26, 2009, “the files with
the pornography†were on the Emprex drive.
Defendant was asked about what he
was doing on February 26, 2009, when he was
“caught.†He
testified that he was opening the images and separating them by what he liked
and what he did not like. He did not
want images of boys, only young girls.
The images he wanted to keep, he transferred to the Kingston drive.
>Dr. Zinik’s Proferred Testimony
In
pre-trial briefing, the defense indicated that it intended to call Dr. Gary
Zinik as a witness to testify “to the nature of [defendant’s] commitment at
Coalinga State Hospital, his diagnosis and the nature of the treatment program
at the hospital.â€
The prosecution moved to exclude
Dr. Zinik’s testimony. The trial court
granted the motion, subject to reconsideration if “further issues†came up
during trial. The court ruled that it
was not relevant why defendant possessed the child pornography, nor “where he
possessed it, what his intent was when he possessed it, what his diagnosis may
have been at the time he possessed it.â€
Dr. Zinik never testified.
>September 20, 2011, Hearing
During trial, in a hearing outside
the presence of the jury, the court considered whether to give a CALCRIM 306
instruction (Untimely Disclosure of Evidence).
Defense counsel stated that he did not know Detective Wiens believed
there was no child pornography on the Kingston drive because it was not stated
in his report. The prosecutor argued
that CALCRIM 306 should not be given absent bad faith on the part of the
prosecution. The prosecutor also argued
that the issue came up at the preliminary hearing. She cited page 75, lines 14-17 of the
preliminary hearing transcript, which states:
“[Prosecutor:] Do you recall whether there are any
photos on the Kingston drive that had oral, vaginal, or anal penetration?
“[Detective
Wiens:] I don’t recall that drive having
that type of material.â€
The court ruled that there was no
discovery violation. As to the
preliminary
hearing, the court stated:
“[w]hat seems to be missing was a very direct question asked of a
witness as the preliminary hearing, or during the course of preparing for
trial, when counsel could have been made aware – and I mean both counsel,
either counsel, could have been made aware that there was nothing contained on
the Kingston drive.†The court further
ruled that “the discovery which the People were to provide were the documents
themselves, any written reports of the officer, or any oral reports of the
officer. And it appears, frankly, that
those oral reports were made today .…â€
The court refused the CALCRIM 306 instruction. The court did agree with defense counsel that
CALCRIM 306 does not require bad faith by the prosecution.
Sentencing Hearing
At the
sentencing hearing, counsel and the court discussed a letter written by one of
the jurors.href="#_ftn13" name="_ftnref13"
title="">[13] The letter requests leniency for defendant
during sentencing.href="#_ftn14"
name="_ftnref14" title="">[14] The letter included the following text:
“The second
element of the case so stated is: ‘When
the defendant acted, he or she knew the character of the matter[.]’ Mr. Smith stated in his testimony stated [>sic] that he would review the
material. What he wanted to keep he
would transfer over to the Kingston drive.
What he didn’t wanted [sic] he
deleted by clicking the button and it would disappear from the screen. The point is if he thinks he deleted the
material and he in fact did not. Then at
that point, he doesn’t know the character of the matter and the second element
goes unproven. There is in my opinion
circumstantial evidence to prove this.
Note: His issued Kingston Drive
has no child porn on it. Concerning the
video, we saw, Mr. [S]mith said, he saw it.
But that doesn’t mean that he didn’t think he deleted it. Which in his mind would constitute not have [>sic] knowledge of its presents [>sic].
That is if I thought it was not there.
It’s like two tanks and Mr. [S]mith acting as filter, in his mind, when
he sees something he like [sic], he
transfers or copies it over to the other take [sic]. Detective Weins [>sic] testified that he found duplicate
objects of files on both drives, but no porn on one drive. To me this is good evidence that point [>sic] to reasonable doubt.â€
The trial court acknowledged
receipt of the letter, and then proceeded to
pronounce the sentence.
The court exercised its discretion in striking one of the prior serious
felonies for sentencing purposes only.
The court sentenced defendant to a base term of 25 years to life.
ANALYSIS
Appellant
raises two issues on appeal. href="#_ftn15"
name="_ftnref15" title="">[15] First, he argues that late discovery by the
prosecution “led to†href="#_ftn16" name="_ftnref16"
title="">[16]
prejudicially inaccurate testimony regarding whether the Kingston drive
contained child pornography. Second, he
claims the trial court erred by excluding evidence of his prior diagnosis and
treatment as a sex offender.
I.
THE
ALLEGEDLY LATE DISCLOSURE OF DETECTIVE WIENS’S REPORT DOES NOT WARRANT REVERSAL
A.
STANDARD OF REVIEW
Though
stylized as a single issue, defendant actually asserts multiple assignments of
error regarding the allegedly late discovery.
There are important distinctions between the separate issues. For example, the duty to disclose substantial
material evidence to the defense is distinct from the duty to correct false or
misleading testimony. (>In re Jackson (1992) 3 Cal.4th 578, 595,
disapproved on other grounds by In re
Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.) The allegedly false testimony regarding
whether the Kingston drive contained child pornography implicates, if anything,
a prosecutor’s duty to correct certain false or misleading testimony. (See In
re Jackson, supra, 3 Cal.4th at
p. 595 disapproved on other grounds by In
re Sassounian, supra, 9 Cal.4th
at p. 545 fn. 6.) Conversely,
the allegedly late disclosure of Detective Wiens’s report implicates, if
anything, statutory discovery obligations under section 1054.1 and the duty to
disclose evidence.
Untangling these issues is not
merely an academic exercise. The
distinctions are important because they trigger significantly different
standards of review. When prosecutors
knowingly fail to correct the false or misleading testimony of their witness,
reversal is required if there is any reasonable likelihood the false testimony
could have affected the judgment of the jury.
(People v. Dickey (2005) 35
Cal.4th 884, 909.)href="#_ftn17"
name="_ftnref17" title="">[17] But violations of discovery obligations in
section 1054.1 are reviewed under the more deferential harmless error standard
of People v. Watson (1956) 46 Cal.2d
818, 836. (People v. Verdugo (2010) 50 Cal.4th 263, 280.)
B.
1. THERE WAS NO BRADY
VIOLATION
We will address the simplest issue
first: whether there was a >Bradyhref="#_ftn18" name="_ftnref18" title="">[18]> violation. Evidence ultimately presented at trial is not
considered suppressed for Brady purposes,
even if the evidence was not disclosed during discovery. (People
v. Verdugo, supra, 50 Cal.4th at
p. 282. See also People v. Morrison (2004) 34 Cal.4th 698, 715.) All of the relevant evidence identified by
defendant was presented at trial (e.g. Detective Wiens’s report and
testimony). There was no >Brady violation.href="#_ftn19" name="_ftnref19" title="">[19]
2.
THE COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING DETECTIVE WIENS’S REPORT
A prosecutor must disclose expert
reports to the defendant or defense counsel.
(§ 1054.1, subd. (f).) There
are two statutory time limitations for section 1054.1 disclosures. (§ 1054.7.)
One applies to “material and information†that “becomes known to, or
comes into the possession of, a party within 30 days of trial.†(Ibid.) For this type of material and information,
disclosure must be generally occur “immediately.†(Ibid.) Other disclosures must be made at least 30
days prior to trial, unless good cause is shown. (Ibid.) Detective Wiens’s report is the first type of
evidence (i.e., “material†that came “into the possession†of the prosecutor
within 30 days of trial). Therefore,
section 1054.7 required the prosecutor to disclose the report “immediately,â€
which she did. Because the prosecution
complied with section 1054.7, the disclosure was not late. (§ 1054.7. See also People
v. Rutter (2006) 143 Cal.App.4th 1349, 1353-1354; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1759 [“there is a
distinction between having evidence and refusing to disclose, and discovering
evidence and disclosing it at a time when it places the other side at a
disadvantage.â€].)
As we explained in >People v. Hammond (1994) 22 Cal.App.4th
1611 (Hammond), the prosecution does
not have a “general obligation to gather evidence.†(Id.
at p. 1624.) And, there is “a
significant difference between failure to gather evidence
immediately or to find all evidence that might subsequently become important[,]
and willful failure to comply with discovery orders.†(Id. at
p. 1623.) The trial court’s ruling was
precisely in-line with our observations in Hammond:
“A trial is not
a scripted proceeding.… [D]uring the
trial process, things change and the best
laid strategies and expectations may quickly become inappropriate … >events that did not loom large prospectively
may become a focal point in reality.
Thus, there must be some flexibility.
After all, the ‘ “true purpose of a criminal trial†’ is
‘ “the ascertainment of the facts.†’
[Citation]†(Id. at p. 1624, italics added.)
Thus, “[a]fter hearing a witness,
the necessity of a rebuttal witness may become
more important.†(>Hammond, supra, 22 Cal.App.4th at p. 1624.)
Similarly, after a perceived change in defense strategy, additional
analysis by Detective Wiens became more important to the prosecution.
The trial court was in the best
position to evaluate these considerations.
Because the trial court’s ruling was well within the bounds of its
discretion, we will not disturb it.
3. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
ADMITTING THE TESTIMONY OF DETECTIVE WIENS REGARDING THE REPORT
Defendant also argues that
Detective Wiens’s testimony constituted a “last minute†disclosure of the href="http://www.fearnotlaw.com/">“exculpatory evidence†that the Kingston
drive did not contain pornography.
The evidence that the Kingston
drive did not contain child pornography was (1) the drive’s contents, and (2)
the testimony of Detective Wiens that there was no child pornography on the
Kingston drive. Nothing in the record
suggests that the contents of the Kingston drive were not disclosed well before
trial. And, Detective Wiens’s testimony> was, by definition, disclosed to the
defense “immediately†as it was spoken into existence. href="#_ftn20" name="_ftnref20" title="">[20] (§ 1054.7.) Thus, the testimony could not have been
“disclosed†any earlier than it was.
4. THE VARIOUS PORTIONS OF OFFICER BASSI’S TESTIMONY
CITED BY DEFENDANT FALL INTO TWO CATEGORIES, NEITHER OF WHICH WARRANT
REVERSAL: (1) TESTIMONY THAT WAS NOT
FALSE OR MISLEADING; AND (2) TESTIMONY THAT WAS CORRECTED BY THE PROSECUTOR
Defendant argues that testimony by
Officer Bassi “misled the jurors.†Much
of the allegedly misleading testimony cited by defendant is not conceivably
false or misleading. The remainder of
Officer Bassi’s cited testimony, which may arguably be misleading, was
corrected by the prosecutor.
>a. >Testimony that Kingston Drive Contained
“Four or Five†Nude Pictures of Children
Defendant argues that Officer
Bassi’s testimony that the Kingston drive contained “four or five†nude
pictures of children reinforced the conclusion that the Kingston drive
contained child pornography. Defendant
does not show how this testimony is false.
To the contrary, the testimony is consistent with the interview
recording played at trial in which defendant
told Officer Bassi there were four to five images of nude children on the
Kingston drive. Defendant cites no
evidence contradicting the presence of four to five images of nude children on
the Kingston drive.
Nor does defendant show how this
testimony “reinforced†the conclusion that the Kingston drive contained child
pornography. Officer Bassi later
testified that pictures of naked children not performing sexual acts would not
be child pornography.
The only conclusion reinforced by
the cited testimony was that the Kingston drive contained four or five images
of naked children. Defendant cites
nothing in the record to lead us to believe this conclusion was erroneous.
>b. >Officer Bassi’s Testimony that Pictures
of Naked Children Would Lead Him to Search Further to Determine if There Were
Pictures of Sexual Acts
Defendant
also argues:
“Redirect
examination by the prosecutor also reinforced the impression that both drives
contained pornography. She asked Officer
Bassi if he reviewed pornographic files from the Emprex drive, and he said
yes.… Then[,] when he agreed that naked pictures of children on the Kingston drive
were not pornography, he responded affirmatively to Ms. Clinton when she
asked, ‘Would finding pictures of naked children on a drive cause you to want
to look to see if there were pictures of sexual acts?…’ †(Italics added, citations omitted.)>
There is no indication this
testimony was false or misleading. If
finding pictures of naked children on a drive would cause Officer Bassi to want
to see if there were also pictures of sexual acts, then an affirmative response
to the question was the only truthful one he could have given. Defendant cites no evidence that in fact
finding pictures of naked children did not
make Officer Bassi want to see if there were also pictures of sexual acts. Indeed, the desire to investigate further was
eminently reasonable once Officer Bassi saw pictures of naked children. Absent evidence that it was false or
misleading, this portion of Officer Bassi’s testimony is not grounds for
reversal.
>c. >Officer Bassi’s Testimony that the
Kingston Drive Contained Child Pornography
Defendant’s most colorable argument
regarding misleading testimony relates to the following three exchanges, where
Officer Bassi indicates that some child pornography was found on the Kingston
drive:
1.
“[Defense counsel]:
Now, these thumb drives – and I’m going to kind of jump around a little
bit. These thumb drives, 11(a) and
11(b), these are still, I mean, fully loaded with illegal child pornography,
right?
“[Prosecutor]: Objection.
Calls for speculation.
“THE COURT: Overruled.
You can answer, sir.
“THE
WITNESS: They should be, yes. [¶] … [¶]â€
2. “[Defense counsel:] Okay.
So this one given to the phasers is smaller than the Emprex drive. You viewed a little bit, or small material,
child pornography material on both of these; is that right?
“A That’s correct. [¶] … [¶]â€
3. “[Defense counsel:] Officer Bassi, the Emprex drive is the lower
silver one there, right?
“A That’s correct.
“Q And that is the one that had most
of the material, the child pornographic material on it, right?
“A Yes.
“Q There was also some found on the
blue and white drive, that is, the Kingston drive that is assigned to the
phasers, right?
“A Correct, four to five pictures.â€
In these exchanges, Officer Bassi
does indicate that child pornography was found on the Kingston drive. As the prosecutor indicated at closing
argument, this was incorrect.
Prosecutors are not responsible for
all erroneous testimony offered by their witnesses. (See, e.g., People v. Riel (2000) 22 Cal.4th 1153, 1211-1212.) Rather, the prosecutor’s duty is to correct
any testimony of prosecution witnesses it knows or should know is false or
misleading. (People v. Vines (2011) 51 Cal.4th 830, 873; In re Jackson, supra, 3
Cal.4th at p. 597.) Here, the prosecutor
did correct the testimony.
After Officer Bassi testified, the
prosecutor elicited testimony from Detective Wiens that he did not believe the
images on the Kingston drive were child pornography, and that all of the child
pornography was found on the Emprex drive.
Moreover, the prosecutor stated unequivocally at href="http://www.mcmillanlaw.com/">closing argument that, “the Kingston
drive does not have child pornography on it.â€
(Cf. People v. Marshall (1996)
13 Cal.4th 799, 830 [noting that falsity of witness’s testimony not concealed
from jury because prosecutor made clear in closing argument that witness’s
testimony was incorrect].) To the extent
the prosecutor had a duty to correct Officer Bassi’s testimony regarding child
pornography on the Kingston drive, she satisfied that duty.
II.
THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION
IN RULING
THAT EVIDENCE ABOUT DEFENDANT’S PRIOR
DIAGNOSIS
AND TREATMENT WAS INADMISSIBLE
Defendant also contends that the
trial court erred in excluding evidence of defendant’s prior diagnosis and
treatment as a sex offender under Evidence Code section 352. We review such rulings for abuse of
discretion, and will only reverse where the lower court’s ruling is arbitrary,
capricious or patently absurd. (>People v. Thomas (2012) 53 Cal.4th 771,
806.)
Defendant claims that the court
abused its discretion by excluding testimony “about appellant’s diagnosis and
treatment as a sex offender.†This
testimony, defendant argues, would have been “relevant to the issue of acting
‘knowingly’ at the time of the offense.â€
Specifically, his “intent could have been consistent with embracing his
fantasies in accord with his treatment.â€
As we will explain, this contention confuses intent with motive, and
distorts the nature of section 311.11’s “knowing†mental state requirement.
A.
EVIDENCE OF
DEFENDANT’S MOTIVE IS IRRELEVANT
“ ‘Motive describes the reason
a person chooses to commit a crime. The reason, however, is different from a
required mental state such as intent .…’ †(People
v. Wilson (2008) 43 Cal.4th 1, 22.)
Section 311.11, subdivision (a)
states, in part:
“Every person
who knowingly possesses or controls
any matter, representation of information, data, or image, including, but not
limited to, any … photograph, … 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 or filmstrip, the production of which involves the use of a person under
the age of 18 years, knowing that the
matter depicts a person under the age of 18 years personally engaging in or
simulating sexual conduct, as defined in subdivision (d) of Section 311.4,
is guilty of a felony .…â€
(§ 311.11, subd.(a), italics added.)
Section 311.11 has no motive
requirement, only a mental state requirement that the defendant knew he/she
possessed or controlled child pornography.href="#_ftn21" name="_ftnref21" title="">[21]
To embrace one’s fantasies is a
possible reason a person may choose to commit a crime. It is a
motive. Conversely, knowing that you
possess certain images or videos depicting minors participating in or
simulating sex relates to a mental state.
(Cf. § 29 [knowledge is a mental state].) A motive is different from a mental state, >Wilson, supra, 43 Cal.4th at p. 22, and a violation of section 311.11
requires the latter, not the former.
This is why two individuals could
have different motives but the same “knowing†mental state. For example, a distributor may knowingly
possess child pornography for pecuniary gain.
An addict may knowingly possess child pornography for personal use. Both individuals violate section 311.11
because they “knowingly possess[ed]†the pornography, regardless of their
reason for doing so. Evidence about
their particular motive is not dispositive – or even relevant – to whether
section 311.11 has been violated.href="#_ftn22"
name="_ftnref22" title="">[22]
So, defendant very well may have
knowingly possessed child pornography for the purpose of embracing his
fantasies in accord with his treatment.
However, such a motive, even if established and accepted by the jury,
would not have negated defendant’s knowledge that the images he possessed were
child pornography.href="#_ftn23"
name="_ftnref23" title="">[23] Because defendant knowingly possessed or
controlled the child pornography, it is not relevant why he did so.
The trial court did not deprive
defendant of his right to present a defense by excluding irrelevant
evidence. (See People v. Thornton (2007) 41 Cal.4th 391, 444-445.)
B.
DEFENDANT’S
APPEAL TO “EQUITABLE†CONSIDERATIONS
DOES NOT
WARRANT REVERSAL
Defendant argues that the jury
should have been allowed to consider the decision to prosecute him, because he
was making a “good faith effort to progress†and “had not harmed a third
party.†Both contentions are
arguable. Even if they were not,
reversal would not be warranted.
“ ‘The district attorney’s
function is quasi-judicial in nature [citation], and ... he is vested with
discretionary power in determining whether to prosecute in any particular
case. An unbroken line of cases in California has recognized this
discretion and its insulation from control by the courts.…’ [Citation.]â€
(Gananian v. Wagstaffe (2011)
199 Cal.App.4th 1532, 1543.) Thus,
“under the doctrine of separation of powers, courts must scrupulously avoid
interfering with the executive’s prosecutorial function, including the exercise
of its broad charging discretion.†(>People v. Cortes (1999) 71 Cal.App.4th
62, 79.)
The judiciary’s concern is that the
prosecutor had probable cause to believe the accused committed an offense. Other considerations beyond that foundational
requirement are left to the discretion of the prosecutor, not courts or juries. (See People
v. Thomas (2012) 54 Cal.4th 908, 950-951 (conc. opn. of Werdegar,
J.).) “ ‘[S]o long as the
prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge
to file … generally rests entirely in his discretion.’ [Citation.]â€
(Ibid.) It is not for us (or the jury) to decide the
circumstances under which a prosecutor should exercise discretionary charging
leniency.
DISPOSITION
The judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Wiseman, Acting P.J.
______________________
Gomes, J.