People v. Gentile CA2/6 ( 2024 )

Filed 5/13/24 P. v. Gentile CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B323686
(Super. Ct. No. 16F-00410)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JEFFREY PAUL GENTILE,
Defendant and Appellant.
Jeffrey Paul Gentile was convicted in a jury trial of
possessing child pornography. The jury also found true the
allegation that he possessed more than 600 images and 10 or
more showed children under the age of 12 years. (Pen. Code §
311.11, subds. (a), (c).) The trial court suspended the imposition
of sentence and placed appellant on probation on certain terms
and conditions, including the service of 180 days in jail.
He appeals contending: 1. The trial court committed error
and violated appellant’s state and federal constitutional rights by
instructing the jury with CALCRIM No. 1191A. 2. The trial court
committed error and violated appellant’s fourteenth amendment
right to due process and a fair trial when it allowed the
prosecutor to admit other images found on appellant’s computer.
3. The errors “cumulatively” deprived appellant of due process of
law pursuant to both federal and state constitutions.
As we shall explain, the first contention is waived and even
on the merits, fails. And, as to this contention, appellant was not
deprived of the effective assistance of counsel. As to the second
contention, the trial court did not abuse its discretion in
admitting other images on his computer. As to the third
contention, there are no errors to “accumulate.”
Factual Background
We view the evidence in the light most favorable to the
judgment as is required by the familiar rule governing appellate
review. (E.g., People v. Johnson (1980) 26 Cal.3d 557, 575-578.)
Detectives from the Arroyo Grande Police Department and the
San Luis Obispo Sherrif’s office were alerted to a computer at
appellant’s residence because the computer had access to
“BitTorrent,” a computer site that includes child pornography.
Pursuant to search warrants, the police seized the computer from
appellant’s bedroom and found 42 videos with the child
pornography images. They also found two images relating to
“explicit content.”1 Expert testimony was admitted that child
pornography cannot have been found on appellant’s computer
without someone consenting that it be sent to the computer.
1 The phrase “explicit content” is chosen by appellant’s
counsel. It refers to an anthropomorphic cartoon image of a fox
with an erect human penis and a second image of the fox bent
over. Appellant’s username on the computer was “Liero.” He
named the first image of the fox with an erect penis as
“Lierocock.” He named the second image of the fox bent over as
“Lierobutt.”
2
Appellant testified in his own behalf. He insisted that he
did not knowingly possess these images and they were, somehow,
placed on his computer without his knowledge and consent.
Discussion
As indicated, appellant’s first contention is waived on
appeal and even on the merits, the contention fails. CALCRIM
No. 1191A provides: “The People presented evidence that the
defendant committed the crime of possessing matter that shows a
minor engaged in or simulating sexual conduct at times that were
not charged in this case. The crime is defined for you in these
instructions. [¶] You may consider this evidence only if the
People have proved by a preponderance of the evidence that the
defendant in fact committed the uncharged offense. Proof by a
preponderance of the evidence is a different burden of proof from
proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more
likely than not that the fact is true. [¶] If the People have not
met this burden of proof, you must disregard this evidence
entirely. [¶] If you decide that the defendant committed the
uncharged offense, you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to
commit sexual offenses, and based on that decision, also conclude
that the defendant was likely to commit [the crime] of possessing
matter that shows a minor engaged in or simulating sexual
conduct, as charged here. If you conclude that the defendant
committed the uncharged offense, that conclusion is only one
factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of
possessing matter that shows a minor engaged in or simulating
3
sexual conduct. The People must still prove the charge beyond a
reasonable doubt.”
“Failure” to, or “election” not to object precludes
consideration on the merits. (E.g., People v. Guiuan (1998) 18
Cal.4th 558, 570.) This is a standard instruction and is a correct
statement of California law. It is presumed that the jury
understood and correctly applied this law. Contrary to
appellant’s claim, this is not confusing even though it makes
reference to two separate standards of proof. Any confusion could
have been addressed at the trial level by defense counsel seeking
a clarifying instruction.
Additionally, there is no ineffective assistance of counsel for
not objecting to the instruction, and appellant suffered no
prejudice from the instruction. (See Strickland v. Washington
(1984) 466 U.S. 668, 697.) This case was a simple credibility
contest and appellant was convicted because the People factually
and legally proved its case. Had the jury believed appellant, they
would have acquitted him. The case did not “turn” on CALCRIM
No. 1191A.
Appellant’s second contention is also without merit. The
trial court did not abuse its discretion in admitting the “explicit
content” images from appellant’s website to impeach his
testimony.2 The rules on abuse of discretion are well known and
need not be repeated. (See, e.g., In re Cortez (1971) 6 Cal.3d 78,
85-86.)
Here, appellant testified that he had no idea that the child
pornography images were on his computer. He also testified
there was “nothing adult” on his website. Possession of “explicit
2 The trial court excluded images depicting adult
pornography.
4
content” images of an erect penis and a butt, even if they were
upon the body of an anthropomorphic fox, had relevance to
appellant’s credibility, i.e., his sweeping denial of having any
pornographic or sexually explicit images or videos on his
computer.
As to the third contention, there are no errors to
accumulate. (See People v. Seaton (2001) 26 Cal.4th 598, 691-
692.)
Disposition
The judgment (order granting probation) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
5
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, J. Michael Lehmann, Deputy Attorney
General, for Plaintiff and Respondent.