People v. Wilson ( 2020 )

Filed 11/6/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074992
Plaintiff and Respondent,
v. (Super. Ct. No. SCD263466)
LUKE NOEL WILSON, ORDER MODIFYING
OPINION AND DENYING
Defendant and Appellant. REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on October 21, 2020, be
modified as follows:
On page 50, the sentence beginning, “As Wilson concedes on appeal,” is
deleted and the following sentence is inserted in its place:
As Wilson concedes on appeal, his counsel objected to some,
but not all, of these allegedly improper acts by the
prosecution.
There is no change in the judgment.
Appellant's petition for rehearing is denied.
McCONNELL, P. J.
Copies to: All parties
2
Filed 10/21/20 (unmodified version)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074992
Plaintiff and Respondent,
v. (Super. Ct. No. SCD263466)
LUKE NOEL WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Esteban Hernandez, Judge. Affirmed.
Charles M. Sevilla, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and
Respondent.
After the trial court denied his pretrial motion to suppress evidence
obtained without a warrant, a jury convicted Luke Noel Wilson of one count
of oral copulation of a child 10 years or younger (Pen. Code, § 288.7,
subd. (b))1 and three counts of committing a lewd act upon a child (§ 288,
subd. (a)), further finding true the allegations that two counts were
committed against more than one victim. (§ 667.61, subds. (b), (c), and (e).)
The court sentenced Wilson to an indeterminate prison term of 45 years to
life.
Wilson appeals, contending (1) the trial court erred in denying his
motion to suppress; (2) the evidence was insufficient to support his
convictions under section 288, subdivision (a); (3) he was denied his due
process right to notice of the nature of the charges against him; (4) the
prosecution knowingly introduced false evidence at trial; (5) the prosecution
failed to produce exculpatory evidence before trial in violation of Brady v.
Maryland (1963) 373 U.S. 83 (Brady); (6) the trial court’s jury instructions
and answers to jury questions were incomplete, misstated the law, and were
unduly prejudicial; (7) prosecutorial misconduct and the court’s failure to
address the misconduct denied him his right to a fair trial; (8) the mandatory
sentence was cruel and/or unusual as applied to Wilson; and (9) cumulative
error. We conclude Wilson’s contentions lack merit. Accordingly, we affirm
the judgment.
FACTUAL BACKGROUND
For purposes of this section, we state the evidence in the light most
favorable to the judgment. (See People v. Osband (1996) 13 Cal. 4th 622, 690;
People v. Dawkins (2014) 230 Cal. App. 4th 991, 994.) Additional facts will be
discussed where relevant in the following sections.
Using a website where women posted photos with the hopes of finding
modeling and acting jobs, Wilson contacted an 18-year-old woman and hired
1 All further statutory references are to the Penal Code unless otherwise
specified.
2
her to pose for a photo shoot. The woman was fully clothed in the initial
photo shoot, but over time Wilson persuaded her to first pose partially nude
and, eventually, fully nude in hotel rooms after plying her with alcohol and
paying her to pose.
The woman later introduced Wilson to her younger sister, J.A., who
was only 15 years old at the time. Wilson paid the two sisters to pose, fully
clothed, for photographs together in Balboa Park.
At the Balboa Park photo shoot, Wilson asked J.A. for her phone
number and began contacting her separately from her sister. J.A. later
agreed to another photo shoot, this time in a hotel room in lingerie.
Thereafter, Wilson continued to send her “proposals” via e-mail, text
message, or a texting “app” for photo shoots, detailing how much he would
pay her to pose in certain ways. Over time, but while she was still a minor,
Wilson progressed to paying J.A. to pose for nude and sexually explicit
photos. Providing J.A. with alcohol to get her “more settled and calm,”
Wilson eventually paid J.A. to let him film her while he performed sexual
acts and while she used sex toys on herself or allowed him to use the same
toys on her body. These “photo shoots” occurred when J.A. was 15 or 16 years
old. After the photo shoots, Wilson sent the photos to J.A., who testified that
she liked the way she looked in the photos. By the time J.A. was 16 or
17 years old, Wilson was paying her to have sexual intercourse with him
while he filmed the encounter. Occasionally, during photo shoots, Wilson
would show J.A. child pornography.
When J.A. was 17, she became pregnant with her boyfriend (not
Wilson). She gave birth to her daughter in late 2013, after she turned 18 and
shortly after her high school graduation.
3
J.A. continued to do photo shoots with Wilson while she was pregnant.
The photo shoots with Wilson, including nude photo shoots and filming
during sexual acts, also continued after J.A. gave birth to her daughter.
Around the same time, J.A. lost her job and was no longer working. She
continued to accept payments from Wilson to perform in photo shoots,
explaining that she could make the same amount of money in exchange for
one photo shoot that she would earn working for two weeks at her previous
part-time job.
Wilson later paid J.A. to send him a video of her having sex with her
boyfriend. Over time, Wilson progressed to suggesting a proposal of paying
J.A. to take photos of her touching her infant daughter. When her daughter
was about nine months old, J.A. accepted a proposal from Wilson to pay her
to take a photo with her hand on her daughter’s buttocks and send it to him.
Thereafter, Wilson offered to pay J.A. to send him photos or videos showing
her orally copulating her daughter. J.A. again accepted the proposal and sent
Wilson a minute-long video.
Wilson was also aware that J.A. often babysat her young cousin.
Wilson began making offers to J.A. for her to touch her cousin in exchange for
several hundred dollars. When the girl was about five years old, J.A. agreed
to do so, sending Wilson photos of her touching her cousin’s bare buttocks.
J.A. admitted to knowing at the time that what she was doing was
wrong. Despite this knowledge, she continued to communicate regularly with
Wilson without expressing any opposition. She admitted she never contacted
the police, even after Wilson escalated to asking J.A. to perform and film
sexual acts on minors. Instead of objecting, J.A. reacted with enthusiasm,
responding to his proposals with e-mails full of exclamation points and
frequently used the slang “lol,” meaning “laugh[ing] out loud,” in response to
4
his extreme proposals. When Wilson asked her to perform oral copulation on
two other minor girls, J.A. responded that she would do it and suggested,
“Let’s do [it] ASAP lol.” Later, Wilson sent her photographs of a young girl
that he wanted J.A. to perform with, to which J.A. responded “Lol aw she’s
soo small and cute lol.”2
Several months later, J.A. declined Wilson’s offers for additional photos
of the young girls, claiming she felt guilty and was no longer comfortable with
the idea. However, J.A. continued to communicate with Wilson up to the
date of her arrest and participated in solo photo shoots for him.
In August 2015, J.A. was contacted by federal law enforcement and
initially denied knowing Wilson or participating in his photo shoots. When
confronted with the photos of her daughter, J.A. admitted the truth and
began cooperating.
J.A. was initially charged with multiple offenses, but accepted a plea
agreement wherein she pleaded guilty to four counts of felony child abuse
(§ 273a, subd. (a)) and was sentenced to 10 years of probation.
As detailed ante, part of Wilson’s course of conduct included offering to
pay for photographs depicting lewd acts with minors, receiving the resulting
photographs, and then distributing those photographs. Wilson used his
“Gmail” e-mail account, hosted by Google, to communicate with the women.
The Google Terms of Service specify that users may only use the Google
2 The record suggests J.A. never completed these acts involving girls
other than her daughter and her cousin despite her willingness to do so.
5
services as “permitted by law.”3 Google informs users that it “may review
content to determine whether it is illegal or violates our policies, and we may
remove or refuse to display content that we reasonably believe violates our
policies or the law. But that does not necessarily mean that we review
content, so please don’t assume that we do.”
Google, on its own initiative, took steps to ensure its systems were free
of illegal content, particularly child sexual abuse material. Since 2008,
Google has used a screening process utilizing a proprietary “hashing”
technology to identify apparent child sexual abuse images on its services.
Trained Google employees use software to generate a “hash” value for any
image file they find depicting child pornography. The hash value is
generated by a computer algorithm and consists of a short alphanumeric
sequence that is considered unique to the computer file.4 (Power of the Hash,
supra, 119 Harv. L.Rev.F. at p. 39.) The resulting hash values are then
added to a repository. The repository therefore contains hash values, not the
actual child pornography images.
When a user uploads new content to its services, Google automatically
scans and generates hash values for the uploaded files and compares those
hash values to all known hash values in the repository. If Google’s system
3 In support of the People’s opposition to the motion to suppress, a
Google employee submitted a declaration with the Google Terms of Service
attached as an exhibit. The record contains no indication of whether Wilson
reviewed these terms or was otherwise aware of their content. We resolve
this case without addressing the terms of service.
4 By way of example, the hash value for a file produced by Google in this
case is “73500566f447032d5137a91e931204eb.” Such a hash value is unique
to the file, but cannot be “ ‘reversed’ ” to generate the contents of the file
itself. (Salgado, Fourth Amendment Search and the Power of the Hash (2005)
119 Harv. L.Rev.F. 38, 40 (hereinafter Power of the Hash.)
6
detects a match between a hash value for uploaded content and a hash value
in the repository for a file which was previously identified as containing
apparent child pornography, the system generates a report to be sent to the
National Center for Missing and Exploited Children (NCMEC) in the form of
a “Cybertip.”5 In some cases, Google sends the report without opening the
image file, while in other cases a Google employee opens the image for
manual review to confirm it contains apparent child pornography.
In June 2015, Google’s system identified four image files, each with
hash values matching values for apparent child pornography images in its
repository, attached to an e-mail created by the Gmail account later
identified as belonging to Wilson.6 Google generated a Cybertip report to
NCMEC identifying and forwarding the four image attachments. The report
included only the four image files, not the e-mail body text or any other
information specific to the e-mail. Google classified the images, using a
common categorization matrix, as “A1,” indicating they depicted
prepubescent minors engaged in sex acts. The report reflected that a Google
5 Under federal law, NCMEC is statutorily obligated to serve as a
national clearinghouse and maintain a tip line for internet service providers
to report suspected child sexual exploitation violations. (See, e.g., United
States v. Ackerman (10th Cir. 2016) 831 F.3d 1292, 1296 (Ackerman);
18 U.S.C. § 2258A(c).) NCMEC is statutorily obligated to forward those
reports, known as “Cybertips,” to federal law enforcement and may, and often
does, forward the reports to state and local law enforcement. (Ackerman, at
p. 1296.)
6 Although Google explains that its search is entirely voluntary and
serves its own non-governmental interests, it has a duty under federal law to
report apparent child pornography to the NCMEC once it obtains actual
knowledge of such content. (18 U.S.C. § 2258A, subd. (a).)
7
employee did not manually review the files after they were flagged using
Google’s hashing technology, and before sending them to NCMEC.
When it received the report from Google, NCMEC did not open or view
the image files, but forwarded the report to the San Diego Internet Crimes
Against Children (ICAC) task force after it determined the internet address
associated with the Gmail account was in San Diego. The ICAC task force is
an office comprised of individuals from multiple agencies, including the
federal Department of Homeland Security and local law enforcement. When
ICAC received the report, an administrative assistant with the San Diego
Police Department printed the report with the attached electronic images,
and provided them to two ICAC investigators. Those investigators viewed
the images and determined the images warranted an investigation. An ICAC
sergeant conducted his own review and agreed with that recommendation.
Using the information contained in the report and based on his review
of the images, an ICAC investigator obtained a search warrant to obtain from
Google all content and user information associated with the identified Gmail
address. The investigator’s affidavit establishing probable cause for the
warrant was premised entirely on the investigator’s viewing of the images
and did not discuss Google’s proprietary hash value technology, the
underlying hash value match performed by Google, or even a general
overview of this type of computerized matching system.
The warrant resulted in the discovery of Wilson’s e-mails offering to
pay J.A. to molest and exploit children. The investigator also reviewed
e-mails in which Wilson distributed apparent child pornography to others.
Using the information received from Google and from Wilson’s internet
service provider to identify Wilson, the investigator then obtained a search
warrant for Wilson’s apartment and vehicle, and to seize computer
8
equipment, storage devices, and other effects. While executing the search
warrant, a participating officer observed a backpack fall from Wilson’s
balcony. The officer retrieved the backpack, which held Wilson’s checkbook
and a thumb drive containing thousands of images of child pornography.
Additional images were found on devices in Wilson’s apartment.
Using information gleaned from Wilson’s e-mails produced in response
to the search warrant, the investigator was able to identify and locate the
woman (J.A.) Wilson paid to perform the sex acts and send him some of the
photographs. The investigator obtained additional warrants to search her
residence and online accounts, leading to additional evidence used in Wilson’s
prosecution.
PROCEDURAL HISTORY
Before trial, Wilson filed a motion to suppress evidence pursuant to
section 1538.5. Wilson argued the warrantless “search” of the e-mail
attachments was illegal, requiring the suppression of those images and all
evidence obtained indirectly from the initial warrantless search, including all
of his e-mails, the e-mails of the woman who sent him the images, and the
evidence recovered from his home.
At the hearing on the suppression motion, both parties stipulated to the
admission as evidence of a declaration by a Google employee explaining
Google’s hashing and reporting process, that any testimony she would have
offered would be the same as the contents of her declaration, and to the
admission into evidence of the Google Terms of Service attached to her
declaration. The parties also stipulated that Wilson had a subjective
expectation of privacy in his e-mail account.
William Thompson, the ICAC investigator who reviewed Wilson’s
e-mail attachments and sought the search warrants, testified about his
9
investigation. Thompson acknowledged that neither Google nor NCMEC
opened the image files attached to the e-mail. Thompson did not obtain a
warrant before viewing the attachments.
Thompson also explained that in early 2017, ICAC changed its process
relating to Cybertips with file attachments when the electronic service
provider indicates it did not open the image files. Now, rather than
immediately printing out the images and viewing them, the attached files are
locked and ICAC first obtains a search warrant to view the attachments.
A computer forensic agent working for the Department of Homeland
Security testified about the hashing process. He opined that it would be
“almost inconceivable” for two files to have the same hash value if the files
were not exactly the same. Using an example of one commonly-used hash
value algorithm, he explained the odds of matching hash values for different
files would be “something like 340 billion, billion, billion, billion to one.”
The court denied the motion to suppress. As the court explained, “it
appears that the crux of the motion is that the visual inspection of the images
that were flagged by Google’s proprietary hashing technology and whether or
not it expanded beyond Google’s private search and therefore would require a
warrant of searching.” The court found that Wilson had no reasonable
expectation of privacy in the use of an e-mail account with Google for
“misconduct or unlawful conduct.” The court explained that “bottom line
when these kind of internet tools are used[,] [t]he tools have to be used in a
lawful manner. And the terms of service alerts the users that Google may
investigate this conduct or suspecting this conduct.”
The court also found that no search under the Fourth Amendment
occurred because law enforcement simply repeated the private search
performed by Google. Acknowledging no employee at Google opened the file
10
to look at the photos, the court found the opening of the photos was not a
significant expansion of Google’s private search because “Google had
previously confirmed that each of the four images in defendant’s e-mail was
child pornography. Special Agent Thompson already knew before visually
examining the images, the court can reasonably infer from the A1
classification, that each of the four images depicted a prepubescent minor
engaged in [a] sex act.” Thus, the court concluded that the investigator was
certain that he would not learn anything by opening the attachment that
“had not previously been learned during the private search,” such that
opening the attachments and viewing the images did not constitute a search.
After the preliminary hearing, the district attorney filed an information
charging appellant with four offenses. Count One, alleging a violation of
section 288.7, subdivision (b) for the oral copulation of a child of 10 years old
or younger, was premised on Wilson paying J.A. to orally copulate her
daughter. Count Two alleged a violation of section 288, subdivision (a) for
the lewd and lascivious touching of a minor arising from the same incident as
Count One. Counts Three and Four also alleged violations of section 288,
subdivision (a), and were premised on J.A.’s touching of her daughter’s and
cousin’s buttocks on separate occasions. Counts Two, Three, and Four also
alleged that Wilson committed the acts against more than one victim within
the meaning of section 667.61, subdivisions (b), (c), and (e).
Following trial, the jury found Wilson guilty of all counts and found
true the enhancement allegations pursuant to section 667.61,
subdivisions (b), (c), and (e) as to two counts. The court denied Wilson’s
motion for new trial and sentenced Wilson to an indeterminate prison term of
45 years to life.
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DISCUSSION
I
Motion to Suppress: Private Search Doctrine
A. Standard of Review
“ ‘In reviewing a trial court’s ruling on a motion to suppress evidence,
we defer to that court’s factual findings, express or implied, if they are
supported by substantial evidence. [Citation.] We exercise our independent
judgment in determining whether, on the facts presented, the search or
seizure was reasonable under the Fourth Amendment.’ ” (Robey v. Superior
Court (2013) 56 Cal. 4th 1218, 1223 (Robey).) “Thus, while we ultimately
exercise our independent judgment to determine the constitutional propriety
of a search or seizure, we do so within the context of historical facts
determined by the trial court.” (People v. Tully (2012) 54 Cal. 4th 952, 979.)
Here, the underlying facts surrounding the search were not in dispute.
Thus, we exercise our independent judgment in answering whether the
search was permissible under the Fourth Amendment.
B. Governing Law
“ ‘The Fourth Amendment proscribes all unreasonable searches and
seizures, and it is a cardinal principle that “searches conducted outside the
judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” ’ ” (Robey, supra,
56 Cal.4th at p. 1224.)
But the Fourth Amendment does not apply to private searches.
(Burdeau v. McDowell (1921) 256 U.S. 465, 475 [finding that the “origin and
history [of the Fourth Amendment] clearly show that it was intended as a
restraint upon the activities of sovereign authority, and was not intended to
12
be a limitation upon other than governmental agencies”]; People v. North
(1981) 29 Cal. 3d 509, 514 [“Historically, courts have consistently held that
the Fourth Amendment’s prohibition against unreasonable search and
seizure does not apply to searches by private citizens.”].) Additionally, if a
government search is preceded by a private search, the government search
does not implicate the Fourth Amendment as long as it does not exceed the
scope of the initial private search. (United States v. Jacobsen (1984) 466 U.S.
109, 115-117 (Jacobsen); see Walter v. United States (1980) 447 U.S. 649, 657
(Walter).)7
The parameters of this private search doctrine—relied upon by the
Attorney General here—were discussed by the United States Supreme Court
in Jacobsen. In that case, FedEx employees opened a package which had
been damaged in transit. (Jacobsen, supra, 466 U.S. at p. 111.) The
employees inspected the torn package, removed and cut open a tube found
inside, and discovered plastic bags containing a suspicious white powdery
substance. (Id. at pp. 111, 115.) The employees repackaged the shipment’s
contents and contacted federal law enforcement agents with the Drug
Enforcement Administration (DEA). (Id. at pp. 111-112.) The agents
inspected the partially open container, removed the contents, opened the
plastic bags, and removed a small quantity of the powder to perform a field
chemical test, which identified the substance as cocaine. (Ibid.)
7 “Although the Fourth Amendment does not apply to a search or
seizure, even an arbitrary one, effected by a private party on his own
initiative, the Amendment protects against such intrusions if the private
party acted as an instrument or agent of the Government.” (Skinner v. Ry.
Labor Execs. Ass’n (1989) 489 U.S. 602, 614.) No argument has been made
that Google was an “instrument or agent” of the government here.
13
The defendant challenged the agents’ opening of the package and
testing of the powder as a warrantless search in violation of his Fourth
Amendment rights. (Jacobsen, supra, 466 U.S. at p. 112.) In concluding no
Fourth Amendment violation occurred, the Supreme Court first explained
that the private search conducted by the FedEx employees did not implicate
the Fourth Amendment. (Id. at p. 115 [“Whether [the initial invasions by the
FedEx employees] were accidental or deliberate, and whether they were
reasonable or unreasonable, they did not violate the Fourth Amendment
because of their private character.”], fn. omitted.) The Court then explained
that “[t]he additional invasions of [the defendant’s] privacy by the
[g]overnment agent must be tested by the degree to which they exceeded the
scope of the private search.” (Ibid.) The Court reasoned that “[o]nce
frustration of the original expectation of privacy occurs, the Fourth
Amendment does not prohibit governmental use of the now nonprivate
information,” and “[t]he Fourth Amendment is implicated only if the
authorities use information with respect to which the expectation of privacy
has not already been frustrated.” (Id. at p. 117.)
Applying these principles, the Court held that the government’s
actions—in examining and then later testing the white powder—did not
violate the Fourth Amendment. Since the agent’s “removal of the plastic
bags from the tube and the agent’s visual inspection of their contents enabled
the agent to learn nothing that had not previously been learned during the
private search,” the Court held it “infringed no legitimate expectation of
privacy and hence was not a ‘search’ within the meaning of the Fourth
Amendment.” (Jacobsen, supra, 466 U.S. at p. 120.) The Court observed
that, even though the white powder was not in plain view because it was still
enclosed in some packaging, “there was a virtual certainty that nothing else
14
of significance was in the package and that a manual inspection of the tube
and its contents would not tell [the agent] anything more than he already had
been told” by the FedEx employees. (Id. at p. 119.) In other words, the
government’s actions merely confirmed the FedEx employees’ recollection
concerning the contents of the package. (Ibid.) “The advantage the
[g]overnment gained thereby was merely avoiding the risk of a flaw in the
employees’ recollection, rather than in further infringing respondents’
privacy. Protecting the risk of misdescription hardly enhances any legitimate
privacy interest, and is not protected by the Fourth Amendment.” (Ibid.)
Similarly, with respect to the field test, the Court held that testing the
substance did not violate the Fourth Amendment because a “chemical test
that merely discloses whether or not a particular substance is cocaine does
not compromise any legitimate interest in privacy,” and therefore does not
constitute a search. (Jacobsen, supra, 466 U.S. at p. 123.) As the Court
explained: “Congress has decided—and there is no question about its power
to do so—to treat the interest in ‘privately’ possessing cocaine as illegitimate;
thus governmental conduct that can reveal whether a substance is cocaine,
and no other arguably ‘private’ fact, compromises no legitimate privacy
interest.” (Ibid.) The Court concluded that “the likelihood that official
conduct of the kind disclosed by the record will actually compromise any
legitimate interest in privacy seems much too remote to characterize the
testing as a search subject to the Fourth Amendment.”8 (Id. at p. 124.)
8 The Court compared the government’s field testing to the government’s
canine sniff of luggage in United States v. Place (1983) 462 U.S. 696, 707,
which was held not to be a search because a sniff can disclose only the
presence or absence of contraband. (Jacobsen, supra, 466 U.S. at pp. 123-
124.)
15
C. Application of the Private Search Doctrine
Wilson contends the private search doctrine does not apply here and,
even if it does, the government “far exceeded the scope of Google’s automated
hash match.” Applying the principles set forth in Jacobsen, we reject
Wilson’s claims and conclude the government’s actions did not violate the
Fourth Amendment.
We begin by examining Google’s actions. To summarize, Google has a
team of employees who are trained on how to recognize child pornography
and, since 2008, Google has used a computerized “hashing technology” to
assist in this process. At least one Google employee reviews an offending
child pornography image before it is assigned a unique hash value, or a
“digital fingerprint,” that is then stored in Google’s repository of hash values.
Google then scans all user content uploaded to its services and compares the
content to the repository of hash values to identify any duplicate images of
apparent child pornography as defined under 18 U.S.C. section 2256. Other
users can also flag suspicious content and bring it to Google’s attention, but
“[n]o hash is added to [Google’s] repository without the corresponding image
first having been visually confirmed by a Google employee to be apparent
child pornography.” When this process yields a match in hash values—i.e.,
the hash value of a user’s content matches a hash value corresponding with
child pornography viewed by Google and stored in its repository—Google
prepares a report to send to NCMEC. In some cases, a Google employee
manually looks at the user content. In other cases, Google reports the user to
NCMEC without again viewing the image whose hash value matches a hash
value in its repository.
In this case, Wilson uploaded four offending images (photographs)
using Google’s services. Utilizing its scanning process and specifically its
16
“hashing technology,” Google determined that the content constituted child
pornography and classified the content as “A1,” indicating “that the content
contained a depiction of prepubescent minor engaged in a sexual act.” Google
submitted a report, along with the four photographs, to NCMEC. It did not
include “any email body text or header information associated with the
reported content.” As in other cases where a Google employee has already
reviewed an offending image in the past, in this case a Google employee did
not re-review Wilson’s photographs concurrently to submitting the report to
NCMEC. Google also did not review the content of the e-mail message to
which the images were attached. Around the same time that it submitted the
report to NCMEC, Google terminated Wilson’s account.
All of Google’s actions—including scanning user content, assigning
hash values to that content, comparing user content to a repository of hash
values, flagging offending images with hash values that match previously-
reviewed child pornography images, and sending the apparent child
pornography to NCMEC—constitute private action that was not performed at
the direction of the government.9 The Fourth Amendment’s protection “is
wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected
by a private individual not acting as an agent of the [g]overnment or with the
participation or knowledge of any governmental official.’ ” (Jacobsen, supra,
466 U.S. at pp. 113-114.) As such, no violation of the Fourth Amendment
occurred as a result of Google’s private actions.
9 Google was not aware of any investigation involving Wilson prior to
submitting its report to NCMEC. As previously indicated, Wilson does not
contend that Google or NCMEC were acting as governmental agents in this
case.
17
The government’s subsequent actions—consisting of opening the
electronic files submitted to it by NCMEC and viewing the four images
attached to Google’s Cybertip—did not exactly replicate Google’s private
actions. Applying Jacobsen, we therefore consider the degree to which the
agent’s additional invasions of Wilson’s privacy exceeded the scope of Google’s
private search. (Jacobsen, supra, 466 U.S. at p. 115.) Before the government
even received Wilson’s photographs, Google had already reviewed identical
images in the past; scanned all of Wilson’s electronic communications to
search for content with matching hash values; flagged four of Wilson’s images
as matching images Google had previously observed; classified the matching
images as A1, indicating they depicted prepubescent minors engaged in
sexual acts; forwarded all four images to NCMEC as part of a Cybertip
report; and terminated Wilson’s account. As the Court explained in Jacobsen,
“[t]he Fourth Amendment is implicated only if the authorities use
information with respect to which the expectation of privacy has not already
been frustrated.” (Id. at p. 117.) Because Google’s actions, outlined above,
frustrated any expectation of privacy Wilson possessed in the four
photographs at issue, the government was free to use this now nonprivate
information without violating the Fourth Amendment. (Ibid.)10 No privacy
interest remained in the four images following the private search by Google.
The agent in this case did not violate the Fourth Amendment when he
opened and viewed the four photographs, just as the government did not
violate the Fourth Amendment when it examined and later tested the white
10 We assume without deciding that Wilson had a legitimate expectation
of privacy in the computer images at issue under the Fourth Amendment.
We do not need to address the question of whether Google’s terms of service
negated any reasonable expectation of privacy.
18
powder in Jacobsen. The DEA agent’s removal of the plastic bags and his
visual inspection of their contents in Jacobsen enabled him to “learn nothing
that had not previously been learned during the private search.” (Jacobsen,
supra, 466 U.S. at p. 120.) Based on the FedEx employees’ testimony, it was
virtually certain that the package contained nothing else of significance that
the agents had not already learned from the private employees. The
government was merely confirming the FedEx employees’ account regarding
the suspected contents of the package. (Id. at p. 119.) Similarly, in this case,
opening and viewing the four photographs merely enabled the government to
confirm what Google had already conveyed through the Cybertip it generated
after using its hashing technology—that the four images were suspected of
constituting child pornography. The government did not further infringe on
Wilson’s privacy, but rather guarded against the risk that Google’s report
was wrong. (Ibid.)
We acknowledge this case differs from Jacobsen insofar as the
technology and procedures that were used by the parties. Unlike Jacobsen,
where the FedEx employees visually observed and handed over the same
white substance that was later tested by the government, in this case a
Google employee did not contemporaneously view Wilson’s four photographs
before sending them to NCMEC. But we conclude Jacobsen still applies
despite these differences resulting from the use of Google’s hashing
technology. A Google employee did review identical user content—which
matched each of Wilson’s four images—although this review occurred at some
point in the past rather than contemporaneously with the Cybertip report. A
“digital fingerprint” was assigned to each of the four images, meaning that
Wilson’s four images were identical to those in Google’s repository of hash
values, and no hash values are stored in Google’s repository unless at least
19
one Google employee has viewed the content and confirmed it constitutes
apparent child pornography.11 Google did not turn over anything else other
than the discrete set of four matching images attached to the Cybertip report;
it did not include any larger “files” from which the images were extracted (if
any) and it did not include any e-mail body text or header information
associated with any of Wilson’s files. (Cf. Ackerman, supra, 831 F.3d at
pp. 1305-1306 [government agent expanded AOL’s private party search
because, in addition to opening the attachment that had been flagged as
having a matching hash value, it also opened an e-mail and three other
attachments that AOL had not opened or processed through its hash value
system].) The government was merely reviewing what Google had already
found, but in a different format—visually reviewing the photographs with the
agent’s human eyes versus replicating the computer’s generation of a
numerical algorithm. Because the assigned numerical values, or “digital
fingerprints,” are representative of the contents depicted in the photographs
themselves, the government gained no new material information by viewing
11 Google explains that a comparison of these “digital fingerprints” allows
it “to identify duplicate images of apparent child pornography to prevent
them from continuing to circulate on [its] products.” (Italics added.) Other
courts and commentators similarly describe hash matching as a highly
accurate technology. (See, e.g., United States v. Reddick (5th Cir. 2018)
900 F.3d 636, 639 (Reddick) [“[H]ash value comparison ‘allows law
enforcement to identify child pornography with almost absolute certainty.’ ”];
Power of the Hash, supra, 119 Harv. L.Rev.F. at p. 39 [explaining hash
algorithms are designed to be “uniquely associated with the input,” such that
no two files will have matching values “except a file that is identical, bit-for-
bit”].)
20
the images. The agent merely confirmed Google’s report that Wilson
uploaded content constituting apparent child pornography.12
In sum, the government’s warrantless search of Wilson’s four images
was permissible under the private search doctrine. Google’s private search
frustrated Wilson’s expectation of privacy in the files before they were viewed
by the government. Google had already identified Wilson’s files as having
matching hash values to images that had previously been viewed and
identified by a Google employee as apparent child pornography. The
government’s subsequent opening and viewing of the four photographs did
not significantly expand on the search that had previously been conducted by
Google. The agent’s actions in opening the files and viewing the images
merely confirmed that the flagged files were child pornography, as reflected
in Google’s Cybertip report.
D. Defendant’s Arguments Regarding the Private Search Doctrine
Wilson’s arguments against application of the private search doctrine
are not persuasive. We address these arguments in turn.
12 As previously noted, Jacobsen also separately discussed the
government’s field test—concluding the testing of the white substance did not
constitute a search within the meaning of the Fourth Amendment.
(Jacobsen, supra, 466 U.S. at pp. 122-123.) Because the same cannot be said
for the agent’s actions in opening and viewing Wilson’s digital images (i.e.,
these actions do constitute a search), this part of the Jacobsen decision does
not directly apply here. To the extent it does apply, the Court’s reasoning
further supports our conclusion that the government did not violate Wilson’s
Fourth Amendment rights. Just as the chemical test could reveal whether
the substance was cocaine, and no other arguably private fact, the agent’s
visual observations here merely confirmed the presence or absence of
suspected child pornography. The fact that the confirmation occurred
through the use of the agent’s own eyes in this case, versus the chemical
testing in Jacobsen, does not make the private search doctrine inapplicable.
21
Wilson contends the private search doctrine does not apply at all
because Google’s use of its hashing technology does not “qualify as a private
search under the Fourth Amendment.” Wilson reasons that only humans can
frustrate one another’s reasonable expectations of privacy and, because
Google’s hashing process is automated and no human looked at Wilson’s
e-mail attachments until the agents did, no private search occurred at all and
Wilson’s privacy interests remained intact. We reject Wilson’s narrow view of
the process employed by Google here. Wilson’s assertion that “[n]o human
looked at [his] email attachments until the agents did,” and his related claim
that Google employed a “machine scan with no human involvement,” does not
accurately account for the multi-step process used by Google here. A
computer program was used, but it did not occur without “human
involvement” or “human participation.” As already discussed, Google trains
employees who are responsible for identifying child pornography on its
systems. No image is assigned a hash value and added to Google’s repository
of hash values associated with apparent child pornography unless an
employee first looks at the actual image and confirms its contents. If
someone uploads content that is scanned and determined to have a matching
hash value, a Google employee then takes that flagged image and submits it
to NCMEC in the form of a Cybertip. In addition to flagging the file as
suspected child pornography based on its matching hash value, Google
classifies the file’s contents based on the initial employee review of an
identical duplicate image. In some cases, a Google employee looks at the
duplicate image before sending it to NCMEC. But in other cases, as here, a
Google employee does not perform this redundant step. In either case,
Google’s actions in reviewing, scanning, and flagging user content—and
assigning hash values to users’ files—are properly viewed in their entirety as
22
equivalent to a private search which frustrated any reasonable expectation of
privacy in the subject files. (See Reddick, supra, 900 F.3d at p. 637 [a private
company’s determination, using an automated computer program, that the
hash values of defendant’s uploaded files corresponded to the hash values of
known child pornography images, constituted a private search for Fourth
Amendment purposes].)13
Citing Riley v. California (2014) 573 U.S. 373 and Carpenter v. United
States (2018) 138 S. Ct. 2206, Wilson next contends that the United States
Supreme Court is unwilling to “extend established Fourth Amendment
doctrines in the face of technological innovations that permit greater privacy
intrusions.” In Riley, the Supreme Court held that a warrant is generally
required before the police may search an arrestee’s cell phone incident to
arrest. (Riley, at p. 401.) In Carpenter, the Court held that the Fourth
Amendment required a warrant for the automated search of historical cell
site location information covering an extended period of time. (Carpenter, at
pp. 2217, 2221.) Both cases referenced privacy concerns implicated by
emerging technology. (See Riley, at pp. 393-395 [explaining that cell phones
have an “immense storage capacity,” which allows people to carry a “cache of
sensitive personal information” with them]; Carpenter, at p. 2220 [explaining
that, with cell site location information technology, the wireless carrier holds
a “detailed chronicle of a person’s physical presence compiled every day, every
moment, over several years”].) But neither case assists Wilson here. The
13 Had the government itself engaged in this type of expansive review of
user content (and in particular, a user’s e-mails) without a warrant, there is
little doubt it would be considered a search under the Fourth Amendment.
(See United States v. Warshak (6th Cir. 2010) 631 F.3d 266, 285-286
[applying Fourth Amendment protection to e-mail contents]; see also Kyllo v.
United States (2001) 533 U.S. 27, 40 [concluding that the use of a thermal
imaging technology constituted an unlawful search].)
23
present case does not involve the government’s use of technological
advancements which pose a threat to a defendant’s Fourth Amendment
rights. It involves a private search which does not implicate the Fourth
Amendment at all. Even if we assume these cases suggest caution in
applying the private search doctrine to digital devices such as cell phones or
computers, we are not faced with that situation here. The government did
not review evidence located on these types of devices. Google did not, for
example, provide the government with access to all of Wilson’s electronic
communications on his computer. Instead, the government viewed four
discrete photographs that were attached to Google’s Cybertip. Wilson’s
reliance on Riley and Carpenter is misplaced here.
Wilson further contends the agent here significantly expanded on
Google’s search. Wilson relies on the United States Supreme Court’s decision
in Walter, and contends Jacobsen is inapposite. We disagree. In Walter, a
private party mistakenly received a shipment containing several individual
boxes of films with labels on the outside indicating the films contained
obscene content. (Walter, supra, 447 U.S. at pp. 651-652 [explaining “one
side of [the examined boxes contained] suggestive drawings, and on the other
side were explicit descriptions of the contents”].) After one of the employees
unsuccessfully attempted to view the films’ contents, the private party
contacted the Federal Bureau of Investigation (FBI) to retrieve the shipment.
(Id. at p. 652.) The FBI agents viewed the films with a projector without
obtaining a warrant. (Ibid.) In a plurality opinion, the Court held that the
government’s search violated the Fourth Amendment, explaining that “[t]he
projection of the films was a significant expansion of the search that had been
conducted previously by a private party.” (Id. at pp. 657-658.)
24
Wilson contends Google’s use of its hashing technology “was not
materially different than reading the descriptive material on [the] film boxes”
in Walter. This case is distinguishable. In Walter, prior to the FBI’s
screening of the films, the agents “could only draw inferences about what was
on the films” based solely on the labels. (Walter, supra, 447 U.S. at p. 657.)
The private party attempted to, but could not, view what was inside. (Id. at
p. 652.) Here, the digital fingerprints associated with Wilson’s files convey
that the information in the four images is exactly the same as what was
previously viewed by a Google employee. The hash value therefore is not like
the labels or pictures on the boxes in Walter. The situation would be
different, and Walter would likely control, if Google and the government here
had relied on file names associated with the four images suggestive of child
pornography. But Google’s hashing technology employs a much more
sophisticated, multi-tiered process, matching files on its services only against
hash values for images that have already been identified as apparent child
pornography by its employees. Unlike the private party in Walter, Google
used a reliable and accurate method of identifying the actual contents of the
files that were provided to the government—all four files were duplicates of
images that a Google employee previously reviewed and identified as
apparent child pornography.
Wilson also attempts to distinguish Jacobsen by pointing out that
Google may have previously identified the subject images incorrectly: “a
hash match involves origination subjectivity and does not provide a ‘virtual
certainty’ that the suspect file is necessarily an image that has been
previously correctly identified as child pornography.” We are not persuaded
by Wilson’s attempt to distinguish Jacobsen on these grounds. There is no
evidence in the record that Google’s initial identification of apparent child
25
pornography, and the associated hash value calculation, was erroneous.
Even if some level of subjectivity is involved when a Google employee
identifies suspected child pornography, that does not mean the private search
doctrine does not apply. The Court in Jacobsen made clear that the DEA
agents could rely on the testimony of the FedEx employees, and that they
could also confirm the employees’ conclusions based on their private
observations—and thereby guard against any errors or “flaw[s] in the
employees’ recollection”—by viewing the contents of the container
themselves. (Jacobsen, supra, 466 U.S. at p. 119.) The private search
doctrine does not require perfection in the information conveyed by a private
party. Unlike Walter, the government relied on much more than a mere label
in this case. Like Jacobsen, where “the suspicious nature of the material
made it virtually certain that the substance tested was in fact contraband”
(id. at p. 125), the suspicious nature of the images was evident based on
Google’s hashing technology. Before opening the four images, the
government could not be one hundred percent certain the Google employee
who previously viewed the four images was not mistaken about what was
depicted in the pictures. But that possibility of error exists in all cases under
the private search doctrine—there is some chance that the private party is
conveying inaccurate information. In this case, however, it was reasonable
for the government to conclude that the images were contraband based on the
hashing process, the A1 designations associated with each of the four files,
and the agent’s own knowledge and training as a member of the ICAC task
26
force.14 (Cf. United States v. Runyan (5th Cir. 2001) 275 F.3d 449, 463
[concluding that “police exceed the scope of a prior private search when they
examine a closed container that was not opened by the private searchers
unless the police are already substantially certain of what is inside that
container based on the statements of the private searchers, their replication
of the private search, and their expertise”].)
Wilson also cites United States v. Keith (D.Mass. 2013) 980 F. Supp. 2d
33, which dealt with a similar hash matching process and concluded that
NCMEC, acting as a government agent, expanded on a private search by
opening and viewing electronic files forwarded to it by a private internet
service provider. (Id. at pp. 41, 43.) The court concluded Jacobsen was
inapposite because, in that case, “the subsequent DEA search provided no
more information than had already been exposed by the initial FedEx
search.” (Id. at p. 43.) By contrast, the court reasoned that more information
can be obtained from viewing a file’s contents: “That is surely why a
CyberTipline analyst opens the file to view it, because the actual viewing of
the contents provides information additional to the information provided by
the hash match.” (Ibid.) But examining an item more closely and learning
some additional details is not incompatible with applying the private search
doctrine; the question is “the degree to which [the additional intrusions]
exceeded the scope of the private search.” (Jacobsen, supra, 466 U.S. at
14 Wilson also argues that “the hash match cannot provide the same
virtual certainty as [the] chemical test” in Jacobsen, but that is not the
proper benchmark because the private party in Jacobsen did not perform the
chemical test. A more appropriate comparison would be to the FedEx
employees’ visual observations of the contents of the container and the white
substance. Google’s extensive hash matching process provides even more
information than those visual observations and inferences drawn from how
the white substance was packaged.
27
p. 115.) Moreover, the fact that the agent learned more from his review of
the pictures compared to his review of the numerical algorithm is not
dispositive because the proper question is whether this additional knowledge
exceeded the scope of the private party’s search. As we have already
discussed, the private party in this case did know all of the same details
based on the prior visual review of the identical images by a Google employee
and the government’s search did not exceed the private search. (See Reddick,
supra, 900 F.3d at pp. 638-639 [a detective did not expand the scope of
Microsoft’s private search; applying Jacobsen, the court concluded that
“opening the file merely confirmed that the flagged file was indeed child
pornography, as suspected” after Microsoft scanned the defendant’s files and
determined the image file’s hash value was identical to the hash value of
known child pornography]; United States v. Miller (E.D. Ky. 2017) 2017 WL
2705963, at *7 [“Google’s hash-value matching . . . does not reveal anything
about an image that Google does not already know from the regular eyes of
its employees. Put another way, hashing is not a futuristic substitute for a
private search—it is merely a sophisticated way of confirming that Google
28
already conducted a private search.”].)15 In addition, in Keith and unlike
here, it was not clear who performed the initial private search. The court
noted it was “possible that the hash value of a suspect file was initially
generated by another provider and then shared with AOL.” (Keith, at p. 37,
fn. 2; see also id. at p. 43 [“the provenance of that designation [of the original
file as child pornography] is unknown”].) By contrast, “[n]o hash is added to
[Google’s] repository without the corresponding image first having been
visually confirmed by a Google employee to be apparent child pornography.”
Finally, Wilson contends he can establish a violation of his Fourth
Amendment rights based on a trespass theory, irrespective of whether his
privacy interests were invaded. The government violates the Fourth
Amendment by either infringing on a defendant’s constitutionally protected
expectation of privacy (Katz v. United States (1967) 389 U.S. 347, 351-353; id.
at p. 361 (Harlan, J., concurring)), or by physically intruding (trespassing) on
a defendant’s property to obtain information (United States v. Jones (2012)
565 U.S. 400, 404-411). But as previously discussed, it was a private party,
not the government, who searched and seized Wilson’s property. The
15 Although the government could learn some details previously unknown
to it, there is no likelihood that the government would learn something else of
significance under the Fourth Amendment—i.e., a private fact in which a
reasonable expectation of privacy remains—when it viewed the four images
of child pornography following Google’s extensive, multi-step hashing process.
(Cf. United States v. Lichtenberger (6th Cir. 2015) 786 F.3d 478, 488-489
[“[N]ot only was there no virtual certainty that [the officer’s] review [of a
laptop computer] was limited to the photographs from [the private party’s]
earlier search, there was a very real possibility [the officer] exceeded the
scope of [the private] search and that he could have discovered something else
on [defendant’s] laptop that was private, legal, and unrelated to the
allegations prompting the search—precisely the sort of discovery the
Jacobsen Court sought to avoid in articulating its beyond-the-scope test.”],
italics added.)
29
government merely viewed what the private party had turned over through a
private Cybertip. The Fourth Amendment only prohibits governmental
action. Wilson provides no sound basis for finding a Fourth Amendment
violation under these circumstances, even if Google’s search can be
characterized as an unlawful trespass, a physical intrusion on defendant’s
property interests, or any other type of wrongful conduct. (See Walter, supra,
447 U.S. at p. 656 [“a wrongful search or seizure conducted by a private party
does not violate the Fourth Amendment and . . . such private wrongdoing
does not deprive the government of the right to use evidence that it has
acquired lawfully”]; Jacobsen, supra, 466 U.S. at pp. 114, 119 [finding that
the DEA agent’s “viewing of what a private party had freely made available
for his inspection did not violate the Fourth Amendment,” even though the
private actor’s conduct “might have been impermissible for a government
agent”]; People v. Otto (1992) 2 Cal. 4th 1088, 1112 [the exclusionary rule
“does not preclude the state from using the fruits of illegal searches and
seizures by private citizens”]; People v. Wilkinson (2008) 163 Cal. App. 4th
1554, 1564 [“[t]he Fourth Amendment’s prohibition against unreasonable
searches and seizures does not apply to searches by private citizens, even if
the private citizens act unlawfully, unless the private citizen can be said to be
acting as an agent for the government”].)
II.
Sufficiency of the Evidence: Section 288(a)
Wilson contends the evidence does not support the jury’s verdict finding
him guilty of Counts Two, Three, and Four, for which he was charged with
aiding and abetting, or conspiring to commit, J.A.’s lewd and lascivious acts
on her daughter and cousin in violation of section 288, subdivision (a) because
J.A. did not harbor the requisite sexual intent. We disagree.
30
“Our task is clear. ‘On appeal we review the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Cravens (2012) 53 Cal. 4th 500, 507.)
“In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal
for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal. 4th 327, 357.)
Both parties agree that for the jury to convict Wilson of committing
lewd and lascivious acts on a child under the age of 14 on the theory that he
aided or abetted, or conspired with, J.A. when she committed those acts, the
jury was required to find that J.A., as the principal perpetrator, touched the
children “with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of [herself] or the child.” (§ 288, subd. (a).) This
element is the only element which Wilson contends was not supported by
sufficient evidence.
For purposes of this appeal, Wilson does not contend that J.A. did not
touch the children, but only that the evidence did not support the jury’s
31
conclusion that she did so with the requisite intent. Wilson argues J.A. did
not lust after her infant daughter and young cousin and touch them with the
aim of satisfying her own sexual desires, but rather that the evidence
established that she touched the children only because Wilson paid her to do
so and she was desperate for money.
“Regarding a specific intent element of a crime, [our Supreme Court
has] explained that ‘[e]vidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as sufficient as
direct evidence to support a conviction.’ [Citation.] Moreover, the standard
of review that applies to insufficient evidence claims involving circumstantial
evidence is the same as the standard of review that applies to claims
involving direct evidence. ‘We “must accept logical inferences that the jury
might have drawn from the circumstantial evidence. [Citation.]” [Citation.]
“Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.]” [Citation.] Where the circumstances reasonably justify
the trier of fact’s findings, a reviewing court’s conclusion the circumstances
might also reasonably be reconciled with a contrary finding does not warrant
the judgment’s reversal.’ ” (People v. Manibusan (2013) 58 Cal. 4th 40, 87.)
To sustain a conviction under section 288, subdivision (a), the
prosecution must present evidence regarding the intent of the person
touching the minor. “As the vast majority of courts have long recognized, the
only way to determine whether a particular touching is permitted or
prohibited is by reference to the actor’s intent as inferred from all the
circumstances.” (People v. Martinez (1995) 11 Cal. 4th 434, 450.) Convictions
32
under section 288, subdivision (a) “have been obtained and upheld only where
the defendant’s lustful intent was manifest under the particular
circumstances. In all cases arising under the statute, the People are required
to prove that the defendant touched the child in order to obtain immediate
sexual gratification.” (Martinez, at p. 452.) “Of course, the manner of
touching is not irrelevant under this view. ‘[T]he trier of fact looks to all the
circumstances, including the charged act, to determine whether it was
performed with the required specific intent.’ [Citations.] Other relevant
factors can include the defendant’s extrajudicial statements [citation], other
acts of lewd conduct admitted or charged in the case [citations], the
relationship of the parties [citation], and any coercion, bribery, or deceit used
to obtain the victim’s cooperation or avoid detection [citation].” (Id. at
p. 445.)
With these principles in mind, we conclude the evidence supports
Wilson’s conviction on the theory that J.A. harbored the requisite sexual
intent when she touched the girls. Viewed in the light most favorable to the
prosecution, the evidence shows that J.A. touched the girls, including orally
copulating her daughter, to satisfy her lust, passion, and sexual desire
directed toward young girls. As she admitted, there was no medical reason
for touching the girls. She also admitted she knew that what she was doing
was “wrong” and that she “sinned” when she touched the girls, reasonably
supporting the inference that she understood her feelings toward the girls
were lewd and lascivious. During the time period in which she was touching
the girls, she never objected to Wilson’s sexualized comments regarding
young girls and even participated in watching child pornography with
Wilson. J.A. did not reject Wilson’s proposals. And she did not merely accept
Wilson’s proposal to perform oral copulation on two young girls; she
33
responded by laughing and asking to “do [it] ASAP.” When Wilson showed
her photos of a young girl that he wanted her to sexually abuse, J.A. did not
react with disgust, but instead expressed she found the girl to be “soo small
and cute lol.” This evidence, viewed in the light most favorable to the jury’s
verdict, supports the conclusion that J.A. touched the girls to obtain her own
immediate sexual gratification.
Additionally, as the prosecution argued in opposition to Wilson’s
pretrial motion to set aside the information, the evidence established that
J.A. participated in “ ‘non-mainstream’ ” sexual activities, supporting an
inference that she would also participate in “ ‘non-mainstream’ ” child
molestation.
On appeal, Wilson points to J.A.’s own statements that she had no
sexual intent when she touched the girls. He also points to other evidence in
the record suggesting she had no sexual interest in young girls because the
incidents giving rise to the offenses here were isolated incidents tied to her
need for money and she never lewdly touched any other minors. However, it
is not this court’s role on appeal to reweigh the evidence, resolve conflicts in
the evidence, or make our own credibility determinations. (See, e.g., People v.
Ochoa (1993) 6 Cal. 4th 1199, 1206; People v. Jones (1990) 51 Cal. 3d 294, 314
(Jones).) The jury rejected J.A.’s self-serving statements denying her sexual
interest in children despite the evidence to the contrary and we must accept
that determination. Considered as a whole, the evidence supports the jury’s
verdict.
III.
Wilson’s Due Process Right to Notice of the Nature of the Charges
Wilson contends his due process right to notice of the charges against
him was violated when J.A. changed her testimony after the preliminary
34
hearing regarding the timing and contents of the photos she sent to Wilson
and which formed the basis for the charges against him. He asserts that
J.A.’s changing testimony between the preliminary hearing and trial
deprived him of adequate notice of the charges against him.
A. Additional Background
At the preliminary hearing, J.A. testified that she believed the videos of
her touching her daughter’s buttocks and orally copulating her daughter were
filmed and sent to Wilson on July 17, 2014. J.A. additionally testified that
she could not remember when she took the photo of her cousin and sent it to
Wilson, but that it occurred before the incidents involving videos of her
daughter.
The information filed after the preliminary hearing alleged that all acts
underlying the offenses occurred “between January 1, 2014 and August 20,
2015.”
At trial, J.A. changed her testimony to now reflect her understanding
that the girl in the July 17, 2014 video was her cousin, not her daughter. She
admitted that she met with the prosecution immediately before trial and
realized that the girl in the July video was not wearing a diaper, meaning it
could not be her infant daughter. She further testified that the videos
depicting her daughter were filmed and sent to Wilson in December 2014.
Concerned with this change in testimony and the apparent lack of evidence to
support the change, Wilson moved for a mistrial. The trial court denied the
motion.
B. Analysis
In Jones, supra, 51 Cal. 3d 294, another child molestation case, the
Supreme Court considered “the extent to which the defendant’s due process
rights are implicated by the inability of his young accuser to give specific
35
details regarding the time, place and circumstances of various alleged
assaults.” (Id. at p. 299.) As the court explained, “[t]he ‘preeminent’ due
process principle is that one accused of a crime must be ‘informed of the
nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process
of law requires that an accused be advised of the charges against him so that
he has a reasonable opportunity to prepare and present his defense and not
be taken by surprise by evidence offered at his trial.” (Id. at p. 317.)
When a case is initiated with the filing of an information, the defendant
is afforded “ ‘practical notice of the criminal acts against which he must
defend’ ” primarily by way of the preliminary hearing transcript. (Jones,
supra, 51 Cal.3d at p. 317.) A defendant’s right to notice does not encompass
“notice of the specific time or place of an offense, so long as it occurred within
the applicable limitation period.” (Ibid., italics added.) “ ‘[A]t a minimum, a
defendant must be prepared to defend against all offenses of the kind alleged
in the information as are shown by evidence at the preliminary hearing to
have occurred within the timeframe pleaded in the information.’ ” (Ibid.,
quoting People v. Gordon (1985) 165 Cal. App. 3d 839, 870-871.)
Here, the information alleged that all offenses occurred between
January 1, 2014, and August 20, 2015. The information also specifically
alleged that Wilson, through J.A., committed the specific acts of (1) orally
copulating J.A.’s daughter and lewdly touching her vagina; (2) touching her
buttocks; and (3) touching the buttocks of J.A.’s cousin. Although J.A.
repeatedly stated she could not recall specific dates, the evidence at the
preliminary hearing and at trial was consistent with the dates in the
information and consistent with the acts described in the information and at
trial against the same victims.
36
Wilson compares this case to People v. Ochoa (2016) 2 Cal. App. 5th
1227, in which the appellate court held that when the information alleged
defendant committed the offenses against one victim, the prosecution could
not seek his conviction at trial based on evidence that the offense was instead
committed against a different victim. (Id. at pp. 1231-1232.) Doing so, the
court reasoned, would violate the defendant’s due process right to notice of
the charges against him. (Id. at p. 1232.)
Here, unlike Ochoa, the allegations in the information and the
testimony at the preliminary hearing were consistent with the evidence at
trial regarding the identity of Wilson’s victims and the offenses committed
against them. At most, J.A.’s testimony differed on the specific dates on
which the offenses were committed, but those dates remained within the time
period alleged in the information. Variances between the preliminary
hearing testimony and trial testimony regarding the time at which specific
acts occurred are not material and do not deprive a defendant of adequate
notice. (People v. Calhoun (2019) 38 Cal. App. 5th 275, 306-309.) Accordingly,
Wilson’s contentions to the contrary have no merit.16
16 Shortly before oral argument, Wilson submitted a notice of new
authority pursuant to rule 8.254 of the California Rules of Court. In his
notice, Wilson suggests that the recent decision in People v. Hughes (2020)
50 Cal. App. 5th 257 supports his claim that his due process right to notice
was violated. However, Hughes did not directly address the defendant’s due
process right to notice, but rather involved the prosecution’s duties under
section 1054 et seq. to disclose information and materials related to an expert
witness’s testimony before trial. (Hughes, at pp. 278-279.) Accordingly, the
decision in Hughes does not change our opinion in this case.
37
IV.
False Evidence
Wilson argues that the prosecution knowingly adduced false testimony
at trial to support its framing of the case. He contends that the prosecution
argued to the jury that Wilson “groomed” the sisters by starting with
innocuous photo shoots and slowly progressing to asking them to perform
sexual acts. Wilson asserts this framing was only possible because of the
false testimony by J.A. and her sister regarding their first photo shoot
together.
As Wilson asserts, J.A. testified she never participated in a photo shoot
in lingerie with her sister, who in turn testified that she did participate in
such a photo shoot with J.A., but it occurred at least a year after the initial,
fully-clothed photo shoot with both sisters. In his motion for a new trial,
Wilson presented evidence that the sisters posed in lingerie the same day as
their initial photo shoot and soon thereafter posed several times in
increasingly risqué photo shoots.
The trial court denied the motion for new trial, finding that the
evidence suggested the sister merely could not remember details, that the
evidence to the contrary was available to Wilson before trial, and that any
error was harmless because such evidence was not material.
As the Attorney General acknowledges on appeal, “[a] criminal
judgment obtained through use of false evidence violates due process,
whether the prosecution solicits the false evidence or simply allows it to go
uncorrected when it appears.” (Campbell v. Superior Court (2008)
159 Cal. App. 4th 635, 652.) The prosecution may not knowingly present false
evidence and must correct testimony “that it knows, or should know, is false
or misleading.” (People v. Morrison (2004) 34 Cal. 4th 698, 716.)
38
Wilson, however, offers nothing more than speculation that the sisters
knowingly committed perjury or that the prosecution knew their testimony
was false. As both sisters frequently testified, they admittedly could not
remember the exact sequence of the numerous photo shoots that had taken
place years earlier and had actively tried to forget what they had done with
Wilson. The plain impression of their testimony suggests that given the
sheer multitude of photo shoots, the sisters could not remember some of the
specific events and their timing, not that they were intentionally offering
false testimony. Given this topic was not a central element of the offenses,
the record likewise does not establish the prosecution knowingly adduced this
testimony or failed to correct it despite its knowledge of its falsity.
Moreover, even assuming some error, Wilson does not establish he was
prejudiced. A conviction premised on false evidence is reversible only when
the defendant shows that if such evidence were not introduced, it is
reasonably probable that the jury would have reached a different result.
(See, e.g., In re Roberts (2003) 29 Cal. 4th 726, 742.)
Wilson does not meet his burden. Given the overwhelming evidence at
trial regarding Wilson’s treatment of the sisters, any discrepancy in the
precise sequence of their earlier photo shoots was immaterial and it is not
reasonably probable that if the jury was aware of the true sequence of photo
shoots, it would have concluded that Wilson did not aid and abet the touching
of the young girls. On appeal, Wilson contends that J.A.’s false testimony
regarding the early photo shoots was part of her effort to rehabilitate her own
image and “lay blame on [Wilson] for the molests of her daughter and
[cousin].” However, even accepting this framing, J.A. failed to rehabilitate
her image regardless of her testimony regarding the early photo shoots. As
discussed ante, the jury did not believe J.A.’s testimony regarding her own
39
sexual desires for her daughter and cousin and suggestion that she was
merely Wilson’s unwitting pawn. In light of the jury’s disregard for other
portions of J.A.’s testimony aimed at evading responsibility, it is unlikely that
more information regarding her participation in the early risqué photo shoots
would have led to a different result as to Wilson. Accordingly, there is no
basis for reversal in this regard.
V.
Brady Error
In an argument related to his claim regarding false evidence, Wilson
contends the prosecution failed to disclose photos in its possession depicting
the early “sexually charged photo shoots” with both sisters, which could have
been used at trial to impeach their testimony that no such photo shoot
occurred. Wilson contends this failure to disclose the photos stored on hard
drives seized from him violated the prosecution’s duties under Brady, supra,
373 U.S. 83.
Wilson raised this claim at trial after the sisters completed their
testimony. He asked the court to order the prosecution to turn over any
photos in its possession depicting either of the sisters. The prosecutor
informed the court that he had offered to provide those photos to Wilson’s
counsel months before trial, but defense counsel declined. Wilson’s counsel
admitted that he declined the offer, but told the court that given the sister’s
unexpected testimony he thought the photos were now relevant. The court
accepted the prosecution’s consent to providing the photos as soon as possible.
However, at the end of the last day of testimony at trial, the prosecution
informed the court that it learned it would take at least a week to obtain the
photos given the complex standards for copying and producing such sensitive
files. Defense counsel suggested he needed to review the files before the trial
40
concluded to preserve Wilson’s rights to a fair trial, but the court denied the
request. The court noted that any deprivation in this regard was the fault of
defense counsel, who declined the prosecution’s offer to disclose the material
over a month before trial. Wilson later raised the same issue in his motion
for new trial, which the trial court likewise denied. The trial court explained
that this photographic evidence “was not exculpatory evidence, at best it
impeached [the sisters] on a minor point.” Finding the evidence had been
offered to Wilson before trial, the court ultimately concluded that Wilson was
not prejudiced because “[i]t is not reasonably probable that the result would
have been different had the evidence been disclosed.”
We agree with the trial court. Under Brady, the prosecution has the
obligation to disclose to the defense all material exculpatory evidence.
(Brady, supra, 373 U.S. at p. 87.) “There are three components of a true
Brady violation: The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263,
281-282; see also People v. Superior Court (Johnson) (2015) 61 Cal. 4th 696,
710.) A defendant establishes prejudice by showing the evidence was
material, i.e., if the evidence had been disclosed, there is a reasonable
probability that the result of the trial would have been different. (People v.
Jenkins (2000) 22 Cal. 4th 900, 954.)
On appeal, we review a claim of Brady error de novo “but give great
weight to any trial court findings of fact that are supported by substantial
evidence.” (People v. Letner and Tobin (2010) 50 Cal. 4th 99, 176.)
Here, Wilson fails to establish that the evidence was suppressed by the
government. Before trial, the prosecution offered the photos to Wilson’s
41
counsel, but he declined to review them. Moreover, even assuming the
prosecution had some duty to produce the photos despite defense counsel’s
disinterest, Wilson fails to demonstrate the requisite prejudice because the
photos were not material. As discussed ante regarding the same evidence,
the minor issue regarding the sequence of the early photo shoots was not a
central element of the prosecution’s case, even if we focus, as Wilson requests,
on the “grooming theory” of Wilson’s liability. If Wilson obtained the photos
to use as impeachment evidence at trial, he would have merely shown that
the sisters had imperfect recollection of their past interactions with Wilson.
Regardless of the sequence of events not directly related to the charged
offenses, it is not reasonably probable that the jury would have reached a
different result if it heard impeachment evidence on this issue. Thus, we
conclude there was no Brady error requiring reversal.
Wilson alternatively argues that his counsel’s failure to obtain the
photos before trial constitutes ineffective assistance of counsel. Like the
standard for Brady error, an appellant asserting his counsel was ineffective
must show a deficient performance and that absent the alleged
ineffectiveness, there is a reasonable probability of a more favorable result.
(People v. Waidla (2000) 22 Cal. 4th 690, 718.) For the same reasons
discussed ante, we conclude there was no such prejudice even assuming
counsel’s performance was deficient.
VI.
Instructional Error
Wilson raises four claims regarding jury instructions. He contends the
court erred in failing to give two additional instructions regarding unanimity
and conspiracy, a set of instructions was unduly prejudicial, and the court’s
response to a jury question misconstrued the law.
42
A. Unanimity Instruction
Wilson alleges the trial court had a duty to provide a unanimity
instruction to the jury. We disagree.
Wilson contends that J.A.’s testimony presented multiple instances
that could separately support the charged offenses because she testified she
touched the girls on multiple occasions. According to Wilson, in light of the
possibility that the jurors relied on separate instances to support their
verdict, the court erred in not instructing the jury that it must unanimously
agree on the same specific act as supporting its verdict as to each offense.
The Attorney General does not dispute that the jury’s verdict must be
unanimous, but contends no unanimity instruction was required here.17 A
criminal defendant has a constitutional right to a unanimous jury. (See, e.g.,
People v. Russo (2001) 25 Cal. 4th 1124, 1132.) “To protect this right, ‘if one
criminal act is charged, but the evidence tends to show the commission of
more than one such act, “either the prosecution must elect the specific act
relied upon to prove the charge to the jury, or the court must instruct the jury
that it must unanimously agree that the defendant committed the same
specific criminal act.” [Citations.]’ (People v. Napoles (2002) 104 Cal. App. 4th
108, 114.)” (People v. Brown (2017) 11 Cal. App. 5th 332, 341 (Brown).)
As Wilson notes, the jury heard evidence tending to show the
commission of more than one act that could support some of the charged
17 In his notice of new authority, Wilson also cites the Supreme Court’s
recent decision in Ramos v. Louisiana (2020) ___ U.S. ___ [140 S. Ct. 1390,
206 L. Ed. 2d 583], which held that the Sixth Amendment’s unanimity
requirement applies to criminal trials in state courts. Given California’s
existing requirement of a unanimous verdict, the Supreme Court’s decision
has no direct effect on California and does not change our analysis. Nothing
in Ramos suggests that a unanimity instruction was required in this case
under the factual circumstances we discuss post.
43
offenses. This, however, does not necessarily mean a unanimity instruction
was required. As the Brown court explained, the presentation of evidence
showing the commission of more than one act supporting a charged offense
creates the requirement of either a unanimity instruction or the
“ ‘prosecution must elect the specific act relied upon to prove the charge to the
jury.’ ” (Brown, supra, 11 Cal.App.5th at p. 341.) “The prosecution can make
an election by ‘tying each specific count to specific criminal acts elicited from
the victims’ testimony’—typically in opening statement and/or closing
argument. [Citations.] Such an election removes the need for a unanimity
instruction. [Citation.] [¶] Under these principles, there is an implicit
presumption that the jury will rely on the prosecution’s election and, indeed,
is bound by it.” (Ibid.)
Here, the prosecution made such an election in closing argument. The
prosecution expressly claimed that the first two counts were premised on
J.A.’s oral copulation of her daughter in December. Similarly, the
prosecution argued that Counts Three and Four were premised on the
specific acts of touching the two girls in the incidents where J.A. sent the
photographs and videos to Wilson. Although J.A. suggested she touched her
cousin on a different occasion, the prosecution expressly did not seek to
establish Wilson’s guilt on an incident in which there was no photograph or
video shown at trial. By making such an election, the prosecution negated
the need for a unanimity instruction. (Brown, supra, 11 Cal.App.5th at
p. 341.) Thus, Wilson’s claim to the contrary has no merit.
B. Conspiracy Instructions
Wilson asserts the trial court had a sua sponte duty to give a jury
instruction clarifying that Wilson was not responsible for J.A.’s acts before he
joined the alleged conspiracy. As Wilson notes, “[a] conspirator cannot be
44
held liable for a substantive offense committed pursuant to the conspiracy if
the offense was committed before he joined the conspiracy.” (People v. Marks
(1988) 45 Cal. 3d 1335, 1345.) On this point, Wilson contends the court
should have instructed the jury with CALCRIM No. 419, which provides:
“(The/A) defendant is not responsible for any acts that were done before (he/
[or] she) joined the conspiracy. [¶] You may consider evidence of acts or
statements made before the defendant joined the conspiracy only to show the
nature and goals of the conspiracy. You may not consider any such evidence
to prove that the defendant is guilty of any crimes committed before (he/ [or]
she) joined the conspiracy.”
“A trial court’s duty to instruct, sua sponte, on particular defenses
arises ‘ “only if it appears that the defendant is relying on such a defense, or
if there is substantial evidence supportive of such a defense and the defense
is not inconsistent with the defendant’s theory of the case.” ’ ” (People v.
Maury (2003) 30 Cal. 4th 342, 424.)
Wilson contends on appeal that his central defense falls under this
instruction and there was “substantial evidence the charged acts occurred
before [Wilson] joined any conspiracy or aided and abetted the charged
crimes.” This contention on appeal, however, is belied by the evidence at
trial.
As Wilson did not testify at trial and offered no affirmative evidence in
defense, his opening brief on appeal relies primarily on his counsel’s closing
argument to claim there was evidence he did not join the conspiracy until
after J.A. committed the acts. As the jury was instructed, however, the
arguments of counsel are not evidence.
At most, Wilson points to an e-mail introduced at trial in which he told
another woman that J.A. sent him a video with her daughter as a surprise
45
and “ ‘I didn’t even ask for it.’ ” This evidence, however, does not support his
contention on appeal that he joined the conspiracy with J.A. after she
performed her criminal act. Rather, it supports his central defense that there
was no conspiracy at any time.
Wilson’s chief defense at trial was that the prosecution failed to show
that he solicited the photos and videos such that there was no conspiracy or
aiding and abetting. Following his statement to the other woman in the
e-mail, he asserted J.A. sent him the photos and videos on her own initiative
and her evidence to the contrary was not unequivocally supported by the
record of their communications.
In accordance with this defense, the jury was properly instructed on the
elements of conspiracy, including, inter alia, the requirement that Wilson
agreed with J.A. to commit the offenses. In contrast to his defense that he
never joined the conspiracy, no evidence at trial suggested Wilson did join the
conspiracy, but only did so after J.A. had already committed any acts
underlying the charged offenses. Thus, an additional instruction was not
warranted in this regard.
Regardless, we conclude that even if the trial court had a sua sponte
duty to instruct the jury with CALCRIM No. 419, and even if that error
constituted misinstruction on the elements of an offense, the error was
harmless beyond a reasonable doubt. (Chapman v. California (1967)
386 U.S. 18, 24.) The conspiracy instructions that were given clearly
informed the jury that Wilson’s culpability required an agreement to commit
the offenses before J.A. committed the acts, which the evidence undisputedly
showed J.A. did commit. The evidence also established that Wilson
repeatedly made “proposals” to J.A. to pay her to perform the acts, record
46
them, and send him copies of the resulting photos and videos. In the absence
of any evidence to the contrary, there was no prejudicial error.
C. Instructions Regarding Evidence of Other Crimes
At trial, the prosecution presented evidence regarding uncharged
criminal offenses. The prosecution relied on this evidence of similar yet
uncharged crimes to prove Wilson’s propensity to commit the charged
offenses. (See, e.g., Evid. Code, § 1108; People v. Villatoro (2012) 54 Cal. 4th
1152, 1159-1166.) The court instructed the jury that “The People presented
evidence that the defendant” committed these uncharged offenses, which if
proven by a preponderance of the evidence, could be considered “for the
limited purpose of deciding whether the defendant acted” with the requisite
intent for the charged offenses.
The court repeated the phrase, “The people presented evidence that the
defendant” committed criminal offenses, multiple times in succession. As
Wilson concedes on appeal, he did not object to these instructions. However,
asserting the issue is not forfeited, he contends that the repetition of the
phrasing that the prosecution “presented evidence that the defendant”
committed offenses improperly signaled to the jury that the court was giving
an opinion that the evidence established that Wilson did indeed commit the
referenced offenses.
We reject Wilson’s claim of alleged prejudice. Standard jury
instructions regarding the use of uncharged offenses to establish intent
include the introductory phrase that Wilson challenges here. (See, e.g.,
CALCRIM Nos. 375, 852A, 852B, 1191A, 2840.) An instruction simply
stating that the prosecution “presented evidence” that the defendant
committed a crime is not synonymous with stating the evidence is credible or
that the defendant did indeed commit the crime. The given jury instructions
47
properly informed the jury of its role in evaluating whether the evidence was
sufficient to establish Wilson’s guilt. The jury was properly instructed that it
had the duty to decide “what the facts are,” that Wilson is presumed to be
innocent, and that the prosecution must prove Wilson’s guilt beyond a
reasonable doubt. Considering the totality of the instructions, we conclude
that the instructions did not mislead the jury or otherwise suggest to the jury
that the court had determined Wilson was guilty. (See, e.g., People v.
Reliford (2003) 29 Cal. 4th 1007, 1013 [“[W]e must view a challenged portion
‘in the context of the instructions as a whole and the trial record’ to
determine ‘ “whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way” that violates the
Constitution.’ ”].)
D. Response to Jury Question Regarding J.A.’s Sexual Intent
Wilson contends the court erred in answering a jury question regarding
the element of J.A.’s intent for the section 288, subdivision (a) offenses. The
jury was correctly instructed that the People had to prove that J.A.
“committed the act with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of herself or the child.”
As discussed ante, J.A. testified that she touched the children only
because she needed money. After it began deliberations, the jury sent a
question to the court, asking whether the “lust” and “passion” referred to in
the jury instruction could be “financial, or other types of ‘lust, passion.’ ”
After consulting with the parties’ counsel, the court replied that “[t]he specific
intent required for Counts 2-4 cannot be solely financial. ‘Lust’ refers to
sexual arousal or sexual gratification of the perpetrator or child.” Wilson’s
counsel argued before the trial court that stating the intent cannot be “solely
financial” (italics added) may be confusing, but the court explained that the
48
intent of the first sentence was to “make[] it clear that there could be
multiple intents going on.”
On appeal, Wilson contends the court’s answer misconstrued the law
and altered the intent requirement for section 288. We disagree. “When
reviewing ambiguous instructions, we inquire whether the jury was
‘reasonably likely’ to have construed them in a manner that violates the
defendant’s rights.” (People v. Rogers (2006) 39 Cal. 4th 826, 873.)
The court’s reply clearly indicated to the jury that it must find J.A.
acted with sexual intent. Simply stating that J.A. could have acted for
multiple reasons, both sexual and financial, did not alter the requisite finding
of sexual intent. Wilson provides no authority to suggest that a perpetrator
must commit a section 288, subdivision (a) offense with a singular, sexual
intent. Nothing in the evidence suggests that sexual intent and financial
intent are mutually exclusive, or that any financial intent affected J.A.’s
sexual intent. The jury was not reasonably likely to have construed the
court’s reply as negating its duty to make the required finding of sexual
intent. We reject Wilson’s claim of error.
VII.
Prosecutorial Misconduct
Wilson asserts his due process rights were infringed due to several
prosecutorial errors that rendered the trial inherently unfair. He contends
the prosecutor (1) falsely claimed in his opening statement that text
messages sent by Wilson to J.A. existed but those text messages were not
introduced into evidence at trial; (2) met with J.A. immediately before trial to
“script[]” her testimony to fit the documentary evidence; (3) used
inflammatory language by calling Wilson a “special type of child molester”
during his opening statement; and (4) improperly vouched for J.A.’s
49
credibility. He also contends the court erred in not correcting these errors,
regardless of whether Wilson’s counsel objected at the time.
As Wilson concedes on appeal, his counsel did not object to any of these
allegedly improper acts by the prosecution.18 Setting aside any issues of
forfeiture, we conclude there was no prejudicial error by the prosecutor and,
by extension, the trial court. Most importantly, even assuming each act
complained of by Wilson was wrongful, Wilson fails to establish that the
alleged errors warrant reversal. Wilson must establish that “there is at least
a reasonable probability that a more lenient verdict would have been
returned in the absence of the errors.” (See, e.g., People v. Vance (2010)
188 Cal. App. 4th 1182, 1207; see also People v. Rodriguez (2020) 9 Cal. 5th
474, 487 [reviewing claims of improper prosecutorial vouching and noting
“that courts have often found that brief statements such as those before us
have limited prejudicial effect”]; People v. Armstrong (2019) 6 Cal. 5th 735,
798 [holding prosecutorial misconduct was not prejudicial under standard
established by People v. Watson (1956) 46 Cal. 2d 818, 836].)
Wilson fails to meet this standard. Even if we consider the claims of
misconduct cumulatively, they are not sufficient to have deprived Wilson of a
fair trial. The evidence of his guilt was so overwhelming that it is not
reasonably probable the jury would have reached a different verdict in the
absence of the alleged prosecutorial acts.
18 Wilson argues the issues were not forfeited, but also contends that to
the extent an objection was necessary, his counsel was ineffective for failing
to object.
50
VIII.
Cruel and Unusual Punishment
Wilson asserts his indeterminate term of life imprisonment constitutes
cruel and unusual punishment in violation of both the California and United
States Constitution “under the facts and circumstances of this case and for
this offender.” (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
“Whether a punishment is cruel and/or unusual is a question of law subject to
our independent review, but underlying disputed facts must be viewed in the
light most favorable to the judgment.” (People v. Palafox (2014)
231 Cal. App. 4th 68, 82.)
Wilson does not dispute that the trial court’s imposed sentence was
mandatory under the relevant statutes given his conviction of oral copulation
under section 288.7, subdivision (b), and the jury’s true findings under
section 667.61, subdivision (b). (§ 667.61, subds. (b), (c)(7), (c)(8), (e)(4)
[establishing mandatory sentence of 15 years to life for any person convicted
of multiple enumerated sexual offenses against more than one victim].) He
also does not appear to challenge the sentencing scheme facially. Instead, he
focuses on the imposed sentence as applied to him.
Although the mandatory nature of his sentence does not end our
inquiry, we grant the Legislature great deference. “[T]he determination of
whether a legislatively prescribed punishment is constitutionally excessive is
not a duty which the courts eagerly assume or lightly discharge. Here, as in
other contexts, ‘ “mere doubt does not afford sufficient reason for a judicial
declaration of invalidity. Statutes must be upheld unless their
unconstitutionality clearly, positively and unmistakably appears.” ’ ” (In re
Lynch (1972) 8 Cal. 3d 410, 414-415 (Lynch).) Findings of disproportionality
are exceedingly rare and occur only in extraordinary cases. (Lockyer v.
51
Andrade (2003) 538 U.S. 63, 73; People v. Em (2009) 171 Cal. App. 4th 964,
972 (Em).)
The Eighth Amendment of the United States Constitution forbids only
sentences that are “grossly disproportionate” to the crime. (Ewing v.
California (2003) 538 U.S. 11, 20.) This proportionality principle is narrow
when applied in noncapital cases. (Ibid.) Somewhat distinctly, under the
California Constitution, a punishment is cruel or unusual “if, although not
cruel or unusual in its method, it is so disproportionate to the crime for which
it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity.” (Lynch, supra, 8 Cal.3d at p. 424; see also People v. Dillon
(1983) 34 Cal. 3d 441, 478 (Dillon).)
“Lynch describes three ‘techniques’ to determine whether a sentence is
so disproportionate to the crime as to constitute cruel or unusual
punishment. [Citation.] We first consider ‘the nature of the offense and/or
the offender, with particular regard to the degree of danger both present to
society.’ [Citation.] Next, we compare the sentence to ‘punishments
prescribed in the same jurisdiction for different offenses which, by the same
test, must be deemed more serious.’ [Citation.] Finally, we compare the
sentence ‘with the punishments prescribed for the same offense in other
jurisdictions having an identical or similar constitutional provision.’
[Citation.] The weight afforded to each prong may vary by case. [Citation.]
‘Disproportionality need not be established in all three areas.’ ” (People v.
Baker (2018) 20 Cal. App. 5th 711, 723 (Baker).)
On appeal, Wilson does not present an argument regarding each of
these techniques, but rather focuses on what he characterizes as his minimal
culpability as a non-perpetrator. As Wilson argues, he “was not present
52
when [J.A.] committed the molest acts, did not force her to commit them, and
was not aware she was committing the acts when she did them.”
Wilson’s argument ignores that under California law, a direct aider and
abettor with the requisite mental state is equally guilty of committing the
intended crime as the direct perpetrator. (§ 31.) “ ‘[W]hen an accomplice
chooses to become a part of the criminal activity of another, [he] says in
essence, “your acts are my acts,” and forfeits [his] personal identity. We
euphemistically may impute the actions of the perpetrator to the accomplice
by “agency” doctrine; in reality, we demand that [he] who chooses to aid in a
crime forfeits [his] right to be treated as an individual.’ ” (People v.
Prettyman (1996) 14 Cal. 4th 248, 259.)
In People v. Gonzales (2001) 87 Cal. App. 4th 1, the court rejected the
defendants’ argument that because they were merely aiders and abettors,
their sentences equal to that imposed on a direct perpetrator were cruel and
unusual. (Id. at pp. 16-17.) Looking at the circumstances of the offense—a
murder in that case—and the defendants’ participation, the court concluded
that the imposed sentences were not cruel and/or unusual as applied to the
defendants even though they were not the shooter. (Ibid.; see also Em, supra,
171 Cal.App.4th at pp. 974-975 [considering proportionality of aider and
abettor’s sentences based on their “integral assistance” in commission of
offense].)
We apply the same analysis here. Wilson’s role as an aider and abettor
does not negate his significant participation in the offenses. Although he did
not directly molest the girls, Wilson was the central figure leading to their
sexual abuse. The evidence at trial established that he sent proposals to J.A.
to take advantage of her trusted role as a mother and caretaker to reach
young children that were beyond Wilson’s own reach. By taking advantage of
53
J.A.’s desperate financial need and leading her into increasingly sexually
explicit acts, Wilson enabled the molestation of these young, vulnerable
children. Although the jury found J.A. harbored her own sexual desires,
there is a strong likelihood that without Wilson’s instigation and offer of
payment, the abuse would have never occurred. Thus, rather than being an
unwitting minor assistant, Wilson was the central figure in the offenses.
We also reject Wilson’s suggestion that unlike other sexual offenses
against older children, the harm to the victims here was minimal because
there is no evidence the girls “were even aware the conduct occurred or
suffered any type of psychological or physical trauma.” California courts
have long recognized “a strong public policy to protect children of tender
years.” (People v. Olsen (1984) 36 Cal. 3d 638, 646.) “Along a spectrum
ranging from murder, mayhem, and torture on one end to petty theft on the
other, ‘lewd conduct on a child may not be the most grave of all offenses, but
its seriousness is considerable.’ ” (Baker, supra, 20 Cal.App.5th at pp. 724-
725.) Rather than decreasing his culpability, the vulnerability of the girls
given their young age is an aggravating circumstance. (Id. at p. 725.)
Similarly, Wilson’s culpability is heightened by aiding J.A. to abuse her
trusted position as a mother and caregiver to assault the children by
invidiously abusing the trust the girls placed in her. (See, e.g., People v.
Gomez (2018) 30 Cal. App. 5th 493, 501-502.)
Wilson also relies on his criminal-free history, college education, and
general good standing in society to suggest the punishment is
disproportionate when applied to him. “Although these factors are favorable
to him, they do not outweigh the other factors.” (Baker, supra,
20 Cal.App.5th at p. 725.) Rather than suggesting a need for leniency, his
education and self-proclaimed success in life suggest he was aware of the
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severity of his actions and did not embark on his criminal path due to an
incomplete understanding of its severity and effect. A college education and
good job are not a “free pass” to commit heinous acts while avoiding the
harshest penalties that apply to those perceived to be of a lower standing.
Finally, Wilson contends that the prosecution’s plea deal with J.A.,
which resulted in her not serving any prison time despite her role as the
direct perpetrator, demonstrates how disproportionate his sentence is to his
culpability. To support this contention, Wilson relies on the Supreme Court’s
decision in Dillon, in which the court relied on the discrepancy between the
defendant’s life sentence and the sentences of his aiders and abettors, none of
whom were sentenced to any prison time. (Dillon, supra, 34 Cal.3d at p. 488.)
The court held that the excessiveness of the defendant’s sentence was
“underscored by the petty chastisements handed out to the six other youths
who participated with him in the same offenses.” (Ibid.) Thus, the difference
between defendant’s heavy sentence compared to “the proverbial slap on the
wrist” received by the other defendants was a relevant factor in the court’s
holding that the defendant’s life sentence was cruel and unusual. (Ibid.)
Wilson, however, ignores that while the Dillon court compared the
defendant’s sentence to some of his aiders and abettors, it declined to
compare the defendant’s sentence to the one aider and abettor who was
granted immunity “for giving evidence against all the others.” (Dillon, supra,
34 Cal.3d at p. 488, fn. 40.) Plea agreements premised, in part, on an
offender’s cooperation with law enforcement are not unusual and an
admission of guilt and agreement to cooperate often has an effect on the
imposed sentence. (See, e.g., People v. Perez (2016) 243 Cal. App. 4th 863,
879-880.) Here, J.A. entered an agreement with the prosecution premised on
her cooperation with law enforcement and agreement to testify against
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Wilson. Wilson, obviously, did not cooperate and still denies his guilt.
Accordingly, comparing the sentences of Wilson and J.A. by ignoring the
effect of J.A.’s cooperation fails to provide an appropriate comparison in
regard to proportionality.
Beyond his challenge to his sentence as a non-perpetrator as compared
to the sentence for J.A. and reliance on his personal history, Wilson makes no
effort on appeal to challenge his sentence as being disproportionate as
compared to the sentences for other more serious crimes or sentences
imposed for similar sentences in other states. By failing to make a challenge
to his sentence under those techniques for applying the constitutional
analysis in his opening brief, we deem the issues forfeited. (See, e.g., People
v. Duff (2014) 58 Cal. 4th 527, 550, fn. 9.) Considering the claims raised by
Wilson, we do not find this case to be one of the exceedingly rare cases
warranting a finding that the imposed sentence is disproportionate to
defendant’s culpability. Accordingly, Wilson fails to show that his sentence
violates the Eighth Amendment or the California Constitution.
IX.
Cumulative Error
Wilson contends that even if the alleged errors standing alone did not
deny him a fair trial, the cumulative effect of these errors unfairly denied
him his due process rights. His claim of cumulative error must demonstrate
that absent the errors, there is a reasonable probability the jury would have
reached a more favorable result. (People v. Holt (1984) 37 Cal. 3d 436, 458.)
Wilson has not met this burden. For the reasons stated ante, we conclude his
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conviction was not the result of any prejudicial error. For the same reasons,
his claim of cumulative error has no merit.
DISPOSITION
The judgment is affirmed.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
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