P. v. Belant







Filed 8/15/11 P. v. Belant CA1/4




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. ANDREW BRIAN BELANT, Defendant and Appellant.

A125786 (Humboldt County Super. Ct. No. CR084170)

Defendant Andrew Brian Belant appeals a judgment entered upon a jury verdict finding him guilty of six counts of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code,[1] § 288, subd. (a)), four counts of forcible oral copulation on a child under the age of 14 (§ 269, subd. (a)(4)), five counts of oral copulation on a child under the age of 14 (§ 288a, subd. (c)(1)), and two counts of possession of child pornography (§ 311.4, subd. (c)). He was sentenced to a determinate prison term of 29 years 4 months, and a consecutive indeterminate term of 60 years to life. Defendant contends the evidence is insufficient to support all of the convictions relating to one of the four boys he molested, and that the trial court committed evidentiary and instructional error. We shall order defendant’s conviction on count 10 reversed, and otherwise affirm the judgment.
I. BACKGROUND
A. John Doe 1
John Doe 1 was a student at Lafayette Elementary School. His father met defendant at John Doe 2’s birthday party. Defendant began taking John Doe 1 to play paintball with other children. He explained to John Doe 1’s father that he was working with children through a church and a school because he was studying to be a teacher.
John Doe 1 and John Doe 2 were working on a school project, and defendant helped them with the project. They would work at defendant’s house, which was near the church where defendant worked. John Doe 1 was approximately 11 years old at the time. One day defendant and John Doe 1 were in defendant’s bedroom working on the project. Defendant wrapped his arm around John Doe 1 so he couldn’t move, unbuttoned John Doe 1’s pants, put his fingers in his mouth and rubbed John Doe 1’s penis. On another occasion, defendant offered to help with some work at John Doe 1’s house. He helped in the yard, and went into the house with John Doe 1. They went upstairs and played an online game, while John Doe 1’s mother stayed downstairs. Defendant then put saliva on his hand and rubbed John Doe 1’s penis, and then orally copulated John Doe 1. John Doe 1 told defendant he had to use the bathroom. He tried to get up, but defendant held John Doe 1’s legs down with his hand, and told him, “Just go.” John Doe 1 repeated that he had to go to the bathroom, and defendant allowed him to do so.
In February 2008, John Doe 1’s father developed concerns about defendant, in part because defendant would come to John Doe 1’s house uninvited and spend time with John Doe 1, playing online games on an upstairs computer. John Doe 1’s father also noticed that John Doe 1’s behavior had become erratic, and spoke with him. He called the police after John Doe 1 told him what had happened, and the next day was told defendant had been arrested.
B. John Doe 2
John Doe 2 became acquainted with defendant in fifth grade, when he was ten years old and defendant was a leader at his school’s after-school program. He also knew defendant through his church’s youth group. Defendant became friendly with John Doe 2’s family, and began spending time at their house. John Doe 2 liked defendant and considered him a friend. His mother trusted defendant and welcomed him into the family home.
In around June 2007, defendant was spending the night at John Doe 2’s house. They were watching television on his bed, and defendant put his hand on John Doe 2’s penis, under the covers, and started rubbing it. Defendant’s younger brother was in the room at the time, but did not see what was happening. John Doe 2 was scared, and did not tell his parents what had happened.
A few days later, defendant visited John Doe 2’s home, and he spent the night in the bedroom John Doe 2 shared with his brother. As they watched television, defendant went over to John Doe 2’s bed, put his hand underneath the covers, and started rubbing John Doe 2’s penis.
About a day later, defendant was again spending the night at John Doe 2’s house, and was in his bedroom. He lay across John Doe 2’s legs, so he could not move, rubbed John Doe 2’s penis, and orally copulated him.[2] John Doe 2 tried to get up, but was pinned down. John Doe 2 described four other virtually identical incidents that took place in his home: one that took place a few days later; one that took place in July of 2007; one that took place sometime in the summer of 2007; and one that took place after the summer. Although John Doe 2 did not testify that defendant lay across his legs on this last occasion, he said he tried to get up, but could not.
John Doe 2 also described two incidents that occurred at defendant’s home during the school year.[3] On one occasion, they were playing World of Warcraft on defendant’s laptop computer. Defendant picked John Doe 2 up, carried him to defendant’s bedroom, sat him on the bed, unzipped John Doe 2’s pants, rubbed his penis, and orally copulated him. John Doe 2 tried to get up, but was unable to because defendant was sitting on his legs. John Doe 2 testified a similar incident occurred at defendant’s home on another occasion.
After defendant moved to a new home, he went to John Doe 2’s house, picked him up and carried him to his car, put the child locks on, and drove him to the new house. Defendant’s roommate was there. After he left, defendant took John Doe 2 to his bedroom and completely pulled off John Doe 2’s pants. John Doe 2 started screaming. Defendant got angry, and John Doe 2 pulled his pants up and went into the living room. Defendant said he was sorry and would not do it again, then took John Doe 2 home. Defendant was arrested a few days later.
Asked if he recalled any other occasions that defendant touched him inappropriately than the incidents he had described, John Doe 2 testified, “Not exactly that I remember.” He testified that defendant molested him at least ten times, and that defendant orally copulated him almost every time.
A number of pictures were later found on the hard drive of one of defendant’s computers. John Doe 2 identified photographs of himself with his penis exposed; of defendant orally copulating him; and of defendant’s hand on John Doe 2’s penis. He did not recall defendant taking the pictures.
Aside from the molestations, defendant acted “really nice” to John Doe 2, taking him out for food and for activities, such as playing paintball with other children.
C. John Doe 3
John Doe 3 knew defendant through the after-school program at Lafayette Elementary School, when he was seven years old. Defendant was nice to him. On one occasion, in the school library, defendant put his hand on the inside of John Doe 3’s thigh, near the genital area. John Doe 3 moved defendant’s hand away, and was not comfortable with him after that.
D. John Doe 4
John Doe 4 knew defendant as a church leader at the Presbyterian church. Defendant chaperoned a number of church field trips John Doe 4 attended. John Doe 4 also attended two or three sleepovers at defendant’s house, and went to the movies and to paintball games with him. On one occasion in 2006, at the movies, defendant touched John Doe 4’s penis over his pants, holding it for about 30 minutes.
E. Testimony Regarding Defendant’s Employment
Karen Rudin testified that defendant was on the staff when she worked as the after-school coordinator at Lafayette Elementary School. She noticed that during snack time, defendant consistently sat next to John Doe 3. She told defendant he was “playing favorites” and asked him to sit elsewhere.
Marilyn Nilsen testified that defendant worked as an after-school leader at another school. On one occasion, defendant was not within her sight, and she saw him alone with a small group of fourth and fifth grade boys. She expressed concern about defendant taking the boys away from the rest of the group, and he responded argumentatively and arrogantly, asking her whether she trusted him and why she was questioning him. Nilsen discussed with him the program’s rules, which included always being in sight. She and defendant continued to have friction over the instruction that he not take children away from the main group. Defendant pointed to his experience working in camps and youth groups and his association with the church as reasons Nilsen should trust him.
F. The Investigation
Sheriff’s deputies arrested defendant on March 1, 2008, and searched his home. A micro camera was found, of a sort that can be used as a hidden camera. On one of defendant’s computers, a program was running which was erasing the hard drive. The program had been running for two hours and 47 minutes. On the hard drive were various pictures of naked boys and the genitals of boys, including the pictures previously discussed of John Doe 2. “File path remnants” were also found on the hard drive, with the names, “cute, gay, preteen boys, 10 YO . . . , 13 YO . . . , snuggle together, naked, nude, on couch, 13 YO, pants half down, pedo young child sex KDVRB dot JPG”; “most cute, preteen 11 YO . . . , little, gay Russian boy, naked, nude, pedo young child sex KDVRBVPJK dot JPG”; “big JPG of little boys’ dicks”; “boys, nine YO, 10 YO, show each other their dicks and balls, naked, nude, pedo young child sex KDVRBVPJK dot JPG”; and “young, pedo boy . . . dot JPG.” The investigator who examined the files was not able to view the pictures associated with the “JPG,” or picture image, files.
G. Defendant’s Testimony
Defendant denied touching any of the victims inappropriately. He said that when he played video games with John Doe 2, the beds were often used as sofas, and he would sit there. He acknowledged having fallen asleep in John Doe 2’s room on occasion and roughhousing with him and his brother, but denied getting into bed with him or doing anything inappropriate. Defendant described picking John Doe 2 up and putting him in the car as a game.
Defendant said he was running the program to wipe his hard drive on March 1, 2008, because his computer would “freeze” when playing a video game, and he wanted to reformat the computer and get rid of viruses. Defendant testified that he did not remember anything about the file paths with names referring to young boys. He did not recall taking the pictures of himself orally copulating John Doe 2 or handling John Doe 2’s genitals, did not recall engaging in that activity, and did not know how the pictures got onto his hard drive.
H. The Charges and Convictions
As to John Doe 1, the amended information charged defendant with two counts of lewd or lascivious acts on a child under the age of 14 years (§ 288, subd. (a)) (counts 1 and 2) and one count of oral copulation on a child under the age of 14 years, and more than 10 years younger than defendant, by means of force or fear (§ 269, subd. (a)(4)) (count 3).
As to John Doe 2, defendant was charged with two counts of lewd or lascivious acts upon a child under the age of 14 years (§ 288, subd. (a)) (counts 4 and 5); three counts of oral copulation on a child under the age of 14 years, and more than 10 years younger than defendant, by means of force or fear (§ 269, subd. (a)(4)) (counts 6, 7, and 11); and six counts of oral copulation with a child under the age of 14 years, and more than 10 years younger than defendant (§ 288a, subd. (c)(1)) (counts 8, 9, 10, 12, 13, and 14).[4]
As to John Doe 3, defendant was charged with one count of committing a lewd and lascivious act on a child under the age of 14 years (§ 288, subd. (a)) (count 15).
As to John Doe 4, he was charged with three counts of committing a lewd or lascivious act on a child under the age of 14 years (§ 288, subd. (a)) (counts 16, 17, and 18).
Defendant was also charged with two counts of possession of child pornography (§ 311.4, subd. (c)) (counts 19 and 20).[5]
After resting, the prosecutor moved to dismiss counts 14, 17, and 18 on the ground the testimony did not substantiate the allegations, and the counts were dismissed.
The jury found defendant guilty of all remaining charges.
II. DISCUSSION
A. Evidence to Support Convictions Relating to John Doe 2
Defendant contends the evidence is insufficient to support all of the convictions related to his oral copulation of John Doe 2. In reviewing such a challenge, “we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra), disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.)
As we have explained, defendant was convicted of five counts of oral copulation (§ 288a, subd. (c)(1), counts 8, 9, 10, 12, and 13) and three counts of orally copulating John Doe 2 by means of force or fear (§ 269, subd. (a)(4), counts 6, 7, and 11).
Defendant argues that John Doe 2 described only seven instances of oral copulation in his testimony, and that the evidence is therefore insufficient to support all eight convictions. His point is well taken. After the first two instances of abuse John Doe 2 described, which occurred around June 2007, and did not involve oral copulation, John Doe 2 described seven occasions on which defendant orally copulated him: (1) when defendant was spending the night at John Doe 2’s house shortly afterward; (2) a few days later, at John Doe 2’s house; (3) around July of 2007, at John Doe 2’s house; (4) during the summer of 2007, at John Doe 2’s house; (5) at defendant’s home during the school year; (6) at defendant’s home during the school year; and (7) after the summer, at John Doe 2’s house. John Doe 2 described being pinned down or unable to get up in all of these incidents. John Doe 2 also described a final incident at defendant’s home shortly before defendant’s arrest, in which defendant carried him to the bedroom and removed his pants; the evidence does not show he orally copulated John Doe 2 on this occasion.[6]
Thus, John Doe 2 described a total of ten occasions of inappropriate conduct, nine of them involving oral copulation or touching of his genitals. When asked if he recalled any other occasions than the first nine incidents in which defendant touched him inappropriately, John Doe 2 replied, “Not exactly that I remember.” When asked on cross-examination how many times the events had occurred, he testified, “I know it was like around ten, around there.” On redirect, the prosecutor asked him, “And you said that you remember at least ten times where Mr. Belant inappropriately touched you‌” He replied, “Yes.” The prosecutor continued: “And approximately how many times do you remember Mr. Belant orally copulating you‌” He replied, “Almost every time.” The prosecutor asked, “So at least ten times‌” John Doe 2 replied, “Yes.”
As the Attorney General points out, a conviction of child molestation may be based on generic testimony, as long as the victim describes the kind of act or acts committed with sufficient specificity, describes the number of acts with sufficient certainty to support each of the counts, and describes the general time period to assure the acts were committed within the applicable limitations period. (People v. Jones (1990) 51 Cal.3d 294, 315-316 (Jones).) The Attorney General suggests John Doe 2’s agreement that defendant had orally copulated him at least ten times provides a basis for the eighth conviction of oral copulation. On this record, we cannot agree. John Doe 2 described a total of ten incidents, including the final one in which he screamed and defendant did not molest him. In seven of those incidents, he testified, defendant orally copulated him. This is consistent with his testimony on cross-examination that the events occurred “around ten” times, as well as his testimony on redirect that defendant had orally copulated him almost every time. Moreover, he testified that he did “not exactly” recall any instances in which defendant touched him inappropriately other than those he had described. Bearing in mind John Doe 2’s testimony as a whole, we conclude that his agreement with the prosecutor that he had been molested at least ten times did not provide substantial evidence that defendant orally copulated him eight times.
The question of remedy remains. Defendant urges us to reverse all of his convictions related to oral copulation of John Doe 2. He does not call our attention to any California case that has applied this extraordinary remedy in such a case, instead relying on a Kentucky case, Miller v. Com. (Ky. 2002) 77 S.W.3d 566 (Miller). In Miller, the defendant was convicted of 150 counts of first degree rape, 25 of which were “Class A” felonies, and 125 of which were “Class B” felonies, and 75 counts of first degree sodomy, 13 of them “Class A” felonies and 62 “Class B” felonies. (Id. at p. 568.) The victim had testified to the number of crimes in general terms (such as “ ‘almost every weekend,’ ” and “two to four times per week”. (Id. at p. 576.) The Kentucky Supreme Court concluded that a mathematical extrapolation of the victim’s testimony showed at most 20 counts of first-degree rape, as well as 121 counts of second- or third-degree rape, and 10 counts of first-degree sodomy, as well as 60 counts of second- or third-degree sodomy. (Id. at p. 575.) The court concluded such extrapolation was improper, however. According to the court, the evidence was not sufficient to prove each offense and to differentiate each count from the others. (Id. at p. 576.) If the issue had been properly preserved for appellate review, the court would have vacated all but two of the rape convictions and all but one of the sodomy convictions, and remanded for retrial on only three sex offense counts.[7] (Ibid.) Moreover, the trial court had not separately instructed the jury on each charged offense. (Ibid.) The court reversed the convictions and remanded the matter to the trial court for a new trial under the correct instructions. (Id. at pp. 576-577.)
We are, of course, not bound by out-of-state authorities. (Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1553.) In any case, we would reject defendant’s suggestion that we reverse all eight of the convictions at issue. John Doe 2 described seven acts of oral copulation at a level of detail that was more than sufficient to meet the standard of Jones, and only one count does not find support in the evidence. (Jones, supra, 51 Cal.3d 294 at pp. 315-316.) There is ample evidence to support all three convictions of oral copulation of John Doe 2 by force or fear (§ 269, subd. (a)(4)), and we will not disturb those convictions. Instead, we shall reverse one conviction of oral copulation. (§ 288a, subd. (c)(1).) The Attorney General suggests that if we are to reverse one such conviction, it would be appropriate to reverse count 10. We have examined John Doe 2’s testimony and the dates the various offenses are alleged to have taken place, and, while many of the dates alleged are broadly defined, we agree with the Attorney General’s suggestion. Accordingly, we shall order defendant’s conviction on count 10 reversed.
B. Evidence of Violation of After-School Program Policy
Defendant contends the trial court abused its discretion in admitting Nilsen’s evidence that at another school, he violated the after-school program’s policies by taking children away from the main group, and that he responded argumentatively and arrogantly when she discussed the matter with him. Over defendant’s objection, the trial court admitted the evidence to show opportunity, preparation, or plan under Evidence Code section 1101, subdivision (b), and to corroborate the testimony of the John Does.
“Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition . . . .” (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), fn. omitted.) Those facts include “motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident.” (Evid. Code, § 1101, subd. (b).) “There is an additional requirement for the admissibility of evidence of uncharged [misconduct]: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.].” (People v. Kipp (1998) 18 Cal.4th 349, 371.) We review the trial court’s decision to admit evidence of uncharged misconduct for abuse of discretion. (Id. at pp. 369, 371.) “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (Id. at p. 371.)
Our Supreme Court in Ewoldt discussed the standard for admissibility of evidence to show a common design or plan: “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 403.) Moreover, evidence of a defendant’s uncharged misconduct need not be part of the same plot as the charged conduct, but rather, “is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan.” (Id. at pp. 401-402.) For instance, noted the court in Ewoldt, where an earlier wife of the defendant had disappeared under suspicious circumstances, evidence that a later wife and stepson had disappeared under suspicious circumstances and were later found buried under the defendant’s house was admissible to show the earlier wife had likewise died of a criminal agency. (Id. at pp. 400-401, discussing People v. Ruiz (1988) 44 Cal.3d 589, 605-606.)
The trial court did not abuse its discretion in admitting Nilsen’s testimony under Evidence Code section 1101, subdivision (b). The evidence was relevant to show that defendant had a plan and pattern of misusing his position as a youth leader to separate children from other adults.
Defendant contends the evidence was unduly prejudicial, however, arguing that the jury could have surmised from Nilsen’s testimony that defendant might have had additional unknown victims, and might have convicted him in part to punish him for those undisclosed offenses. On this record, we see no likelihood that the convictions were tainted in this manner. All four victims testified in detail about defendant’s actions. Nothing in Nilsen’s testimony was inflammatory enough that the jury would have been likely to convict defendant based on anything other than the offenses at issue in the trial. In the circumstances, the trial court did not abuse its discretion in admitting the testimony.
C. Propensity Instruction
Defendant contends the trial court erroneously allowed the jury to consider the charged offenses as propensity evidence pursuant to a modified version of CALCRIM No. 1191.
As we have explained, evidence of a defendant’s action on a specific occasion normally is inadmissible to show his or her propensity to commit the crime charged. (Evid. Code, § 1101; People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) An exception to this rule exists in Evidence Code section 1108, however. Subdivision (a) of that section provides in pertinent part: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” As our Supreme Court has explained, “Available legislative history indicates [Evidence Code] section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense. [Citations.]” (Falsetta, supra, 21 Cal.4th at p. 911.) There is no doubt that Evidence Code section 1108 authorizes a trial court, in appropriate circumstances, to admit evidence of uncharged sexual offenses to prove the defendant’s propensity to commit the charged sexual offense at issue in trial. The question before us here is whether the trial court improperly allowed the jury to consider evidence of the charged sexual offenses—that is, the molestations of the four John Does and the two charged pornography crimes—to be used to show defendant’s propensity to commit the other charged offenses.[8]
For context, we quote the pertinent instructions at length: “The people presented evidence that the defendant committed the crime of Penal Code section 311.3(a) [sexual exploitation of a child]. That was not charged in this case. This crime is defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant [], in fact, committed the uncharged offense. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not [that] the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense you may but [] are not required to conclude from the evidence [that] the defendant was disposed or inclined to commit sexual offenses and based on that decision also conclude that the defendant was likely to commit and did commit counts one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fifteen, sixteen, nineteen, and twenty as charged here. [¶] If you conclude the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of all counts that I just listed. The People must still prove each count beyond a reasonable doubt. [¶] In addition, if you decide that the defendant committed one or more of the charged offenses, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude the defendant was likely to commit and did commit one or more of the other charged offenses in this matter. [¶] If you conclude the defendant committed one or more of the charged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty [] of any of the charged offenses in this matter. The People must still prove each charged offense beyond a reasonable doubt.” (Italics added.) The italicized portion of this instruction is not included in the CALCRIM pattern instruction. (CALCRIM No. 1191.)
Defendant contends the jury should not have been instructed that it could consider the charged offenses as evidence of his propensity to commit the other charged offenses. He relies primarily upon People v. Quintanilla (2005) 132 Cal.App.4th 572, 582 (Quintanilla), in which our colleagues in Division Three of the First Appellate District considered whether evidence of charged crimes could properly be used under a similar statute, Evidence Code section 1109,[9] as evidence of the defendant’s propensity to commit other charged crimes. A majority of the court answered that question in the negative, reasoning that our Supreme Court in Falsetta had relied in large part on the trial court’s discretion to exclude evidence of other crimes under Evidence Code section 352 to uphold the constitutionality of Evidence Code section 1108 (see Falsetta, supra, 21 Cal.4th at pp. 917-918), and that where the other acts at issue were charged crimes, they could not be excluded. (Quintanilla, supra, 132 Cal.App.4th at p. 582.) The court also noted that the instruction allowed the jury to use the charged domestic violence crimes as propensity evidence if it found by a preponderance of the evidence that the defendant had committed those charged offenses, and questioned whether the jury could perform the “mental gymnastics” involved in weighing the same evidence by the preponderance of the evidence standard for purposes of drawing a propensity inference, and under the reasonable doubt standard for purposes of deciding the defendant’s guilt on each charge. (Id. at pp. 581, 583.) Quintanilla, however, was vacated by the United States Supreme Court for reconsideration on another ground, and the subsequent decision was not published. (Quintanilla v. California (2007) 549 U.S. 1191; see also People v. Wilson (2008) 166 Cal.App.4th 1034, 1046, fn. ** (Wilson).) Quintanilla is therefore of dubious precedential value.
The court in Wilson considered this issue in the context of an instruction under Evidence Code section 1108, and expressed doubts about the reasoning of the Quintanilla majority. We quote the court’s reasoning: “We discern three reasons for permitting the jury to use evidence of charged sex offenses to show a propensity to commit another charged offense. First, the plain wording of [Evidence Code] section 1108 does not limit its application to cases involving uncharged sex offenses. The statute provides that when a ‘defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.’ The statute does not distinguish between charged and uncharged offenses. Second, in cases such as this, involving multiple sexual offenses against multiple victims, permitting the jury to use propensity evidence in this way serves the legislative purpose behind [Evidence Code] section 1108. Third, the policy concerns or factors that Falsetta described as ‘supporting the general rule against the admission of propensity evidence’ are not implicated where multiple offenses are charged in the same case. (Falsetta, supra, 21 Cal.4th at p. 915.) The defendant does not face an ‘unfair burden of defending against both the charged offense and the other uncharged offenses’ or ‘protracted “mini-trials” to determine the truth or falsity of the prior charge’ or ‘undue prejudice arising from the admission of the . . . other offenses’ in cases such as this, since he is already required to defend against all of the charges. (Id. at pp. 915, 916.) Thus, the reasons for excluding propensity evidence set forth in Falsetta do not apply to cases involving propensity evidence based on charged offenses. [¶] For these reasons, we are not persuaded that the court in Quintanilla was correct in precluding the use of charged offenses to show propensity.” (Wilson, supra, 166 Cal.App.4th at p. 1052.) We find this reasoning persuasive.[10]
Rather than deciding the case on this basis, however, the court in Wilson concluded that the instruction before it was narrower than that given in Quintanilla and distinguished Quintanilla on that basis. (Wilson, supra, 166 CalApp.4th at pp. 1052-1053.) Among the factors the court in Wilson considered were that the trial court had modified CALCRIM No. 1191 to eliminate the language permitting proof of the propensity evidence by a preponderance of the evidence, and instructed the jury that the prosecution had to prove “ ‘each element of every charge beyond a reasonable doubt’ ”; that the trial court had instructed the jury that it may, but was not required to, make the inference authorized by Evidence Code section 1108; that the jury had been told that the inference was not by itself sufficient to prove the defendant guilty of the other charged offenses; that the trial court had limited the use of the inference to proof that the defendant had the specific intent to commit a charged offense; and that the court had engaged in a weighing process under Evidence Code section 352. (Wilson, supra, 166 Cal.App.4th at pp. 1052-1053.)
The instruction in this case is somewhat broader than that in Wilson. For one thing, it allowed the jury to infer not simply that defendant had the requisite specific intent, but that that he “was disposed or inclined to commit sexual offenses and, based on that decision, also conclude the defendant was likely to commit and did commit one or more of the other charged offenses in this matter,” not simply that he had the requisite specific intent. (See Wilson, supra, 166 Cal.App.4th at pp. 1044-1045.) This inference, however, is a legitimate one. (See People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.)
Defendant argues, however, that the jury might have been confused about the correct burden of proof to apply to the charged offenses, pointing out that the instruction told the jury it needed to find the uncharged offenses true only by a preponderance of the evidence to use them as propensity evidence. We disagree. The instruction told the jury that if it decided defendant had committed a charged offense, it could use that offense as propensity evidence; it went on to tell the jury it must prove each charged offense beyond a reasonable doubt. Reading the instruction as a whole, the jury was adequately informed it should use the charged offenses as propensity evidence only if those offenses were first proved beyond a reasonable doubt.[11]
We recognize that the trial court did not expressly indicate it had conducted a balancing analysis under Evidence Code section 352 to decide whether to give the challenged instruction. (See Wilson, supra, 166 Cal.App.4th at p. 1053.) Even assuming the court did not conduct such an analysis, any error is harmless. The charged crimes were all connected to defendant’s sexual interest in young boys and his willingness to commit criminal acts in pursuit of that interest. The evidence was highly probative, and we have no doubt that the trial court would have reached the same result if it had expressly weighed the evidence under Evidence Code section 352. (See People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
We therefore conclude the trial court did not err in instructing the jury on the use of the charged crimes as propensity evidence.
D. Evidence of File Names
Over defendant’s objection, the trial court allowed evidence of the “JPG” file names found on defendant’s computer for which the corresponding pictures could not be recovered. As we have explained, the names of the files included “pants half down, pedo young child sex,” “big JPG of little boys’ dicks,” and “boys, nine YO, 10 YO, show each other their dicks and balls, naked, nude . . . .” Defendant contends the trial court should not have admitted the file names as evidence that he committed the uncharged offense of sexual exploitation of a child.
As we have discussed, the trial court instructed the jury that the People had presented evidence that defendant violated section 311.3, subdivision (a), sexual exploitation of a child, and that if the jury decided it had committed the uncharged offense, it could use the offense as propensity evidence. Under section 311.3, subdivision (a), “A person is guilty of sexual exploitation of a child if he or she knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct.”
Defendant contends this evidence was inadmissible hearsay, that it was not proper propensity evidence, and that it prejudiced him. The trial court concluded the file names were hearsay, but appeared to conclude they fell within the exception to the hearsay rule for admissions (Evid. Code, § 1220), and concluded they were admissible as propensity evidence. We review the trial court’s ruling on the admissibility of evidence for abuse of discretion, and will not reverse “unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (Guerra, supra, 37 Cal.4th at p. 1113.)
To the extent the file path names were hearsay, we see no abuse of discretion in the trial court’s ruling that they were admissible as admissions. (Evid. Code, § 1220; see also Evid. Code, § 1221 [adoptive admissions].) Defendant does not dispute that the computer on which the file path names were found was his, and he either named the picture files or downloaded picture files with names that indicated the accompanying pictures contained child pornography.
Nor do we see an abuse of discretion in the trial court’s conclusion that the file path names were admissible as propensity evidence under Evidence Code section 1108, which authorizes the admission, in an action in which the defendant is accused of a sexual offense, of evidence of the commission of another sexual offense, if the evidence is not inadmissible under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) “Sexual offense” is defined to include a violation of section 311.3. Defendant contends there is no evidence he developed, duplicated, or exchanged child pornography for purposes of section 311.3. (See In re Duncan (1987) 189 Cal.App.3d 1348, 1358 [section 311.3 does not prohibit mere possession of child pornography, but rather outlaws development, duplication, printing, or exchange of defined items].) Under that statute, however, “duplicating” includes scanning a photograph into a computer. (See People v. Spurlock (2003) 114 Cal.App.4th 1122, 1134.) The jury could reasonably infer from the file path names that defendant scanned or otherwise duplicated prohibited pictures for purposes of section 311.3.
Defendant argues the file path names were more prejudicial than probative. “ ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Morton (2008) 159 Cal.App.4th 239, 249.) In another context, evidence of the file names might “ ‘uniquely tend[] to evoke an emotional bias’ ” against defendant. Here, however, the jury had before it actual images from defendant’s computer of youths engaged in sexual conduct, including the images of him orally copulating John Doe 2. To a jury viewing those images, simple descriptions of the contents of erased files would not evoke such a bias.
In any case, in light of the images the jury had before it, we see no possibility that the jury would have reached a different result if the file names had not been admitted. Even if there was error, it was harmless.
E. Admission of Photographs
Defendant contends the trial court abused its discretion in admitting four photographs of young males, evidently not any of the John Does, as evidence of his violation of section 311.3. As described by the investigator who examined defendant’s computer files, exhibit 37 showed “a young boy standing naked holding what appears to be a piece of string near a lake or a body of water.” Exhibit 38 showed “what appears to be a young male orally copulating a penis.” Exhibit 39 showed “a young male laying on a bed, and he is naked; and he appears to be operating some sort of electronic device.” Exhibit 40 showed “a young male . . . exposed from the waist down, and he appears to have an erection.”
Defendant contends the pictures were improperly admitted as propensity evidence. We disagree. As permitted by Evidence Code section 1108, the pictures were relevant to show defendant’s commission of another sexual offense, and thus his propensity to engage in sexual misconduct involving young boys, and on the facts of this case, the trial court could reasonably conclude they were not more prejudicial than probative.
We reject defendant’s contention that the photographs were not relevant to the issues at trial, because they have nothing to do with the John Does. Our Supreme Court in People v. Memro (1995) 11 Cal.4th 786, 864-865, concluded the trial court had not abused its discretion in admitting magazines containing sexually explicit stories and pictures of males ranging from prepubescent to young adult in order to show the defendant’s intent to do a lewd or lascivious act with his young victim. Defendant argues that under Memro, admission of such photographs is permissible only to show intent, not as general propensity evidence. The evidence in Memro was admitted, however, before Evidence Code section 1108 was enacted, allowing evidence of sexual offenses to be used as propensity evidence. (See Falsetta, supra, 21 Cal.4th at p. 911 [Evid. Code § 1108 enacted in 1995 to expand admissibility of disposition or propensity evidence in sex offense cases].) Under section 1108, “ ‘[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough that the charged and uncharged offenses are sex offenses as defined in section 1108.’ [Citations.]” (People v. Escudero (2010) 183 Cal.App.4th 302, 311.) The photographs were properly admitted under Evidence Code section 1108 to show defendant’s propensity to commit sexual offenses.[12]
In any case, we would find any error harmless. Bearing in mind the images of defendant sexually molesting John Doe 2—whose admission defendant does not challenge—we see no likelihood that the jury would have reached a different result even if the additional images had not been admitted.
III. DISPOSITION
Defendant’s conviction on count 10 is reversed. In all other respects, the judgment is affirmed.






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RIVERA, J.



We concur:




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REARDON, Acting P. J.




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SEPULVEDA, J.


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