People v. Drop CA6

Filed 3/12/21 P. v. Drop CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H044970
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1241676)
v.
ROBERT ANDREW DROP,
Defendant and Appellant.
Appellant Robert Andrew Drop was convicted of continuous sexual abuse of a
child under 14 (Pen. Code § 288.5, subd. (a)), aggravated sexual assault of a child under
14 and ten years younger than the defendant (Pen. Code, § 269), and two counts of sexual
intercourse or sodomy with a child ten years of age or younger (Pen. Code, § 288.7, subd.
(a)). The trial court sentenced Drop to an indeterminate term of 65 years to life
consecutive to a determinate term of 16 years in prison.
On appeal, Drop argues that the trial court prejudicially erred by: (1) admitting
expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS);
(2) giving CALCRIM No. 1193 [Testimony on CSAAS]; (3) admitting evidence of an
uncharged crime of possession of child pornography; and (4) giving a legally erroneous
instruction on possession of child pornography. Finally, he claims that even if these
errors were not individually prejudicial, their cumulative impact warrants reversal. We
find that any challenge to the admission of statistical evidence of the frequency of false
reporting of sexual abuse was forfeited, and find no merit to Drop’s other arguments. We
affirm the judgment.
I. BACKGROUND
A. Prosecution’s Case
Drop married Elena Doe in 2001 and became stepfather to Elena’s daughter, J.D.,
and son, E.D. Drop adopted the children in 2005. When J.D. was in second grade and
about six or seven years old, she walked into Drop’s bedroom and found him
masturbating to pornography. Drop asked her to help him masturbate and guided her
hands to his penis. A couple of weeks later, he forced J.D. to perform oral sex on him.
Drop continued to force J.D. to perform oral sex on him over the course of her second
and third grade years. When J.D. was in third and fourth grade, Drop began to have
sexual intercourse with her. J.D. estimated that it happened frequently during her fourth
grade year, that there were four such instances during her fifth grade year, and that it
happened less and less as she got older. By her sixth grade year, she recalled one such
instance.
When J.D. reached seventh grade, she started to resist Drop’s advances and no
longer had sexual intercourse with him. During that period, however, Drop would
frequently come into J.D.’s bed at night and place his hands on her body. Drop also
frequently masturbated in J.D.’s presence.
In February 2011, Elena returned home after leaving for work because she forgot
something at home and found Drop naked with an erection in J.D.’s bed. Drop claimed
J.D. had a nightmare and he was consoling her. Although Elena knew this behavior was
“ ‘bad’ ” she did not report it to the police because she did not want to “ ‘ruin [Drop’s]
life’ ” and because she feared he would deny any wrongdoing and punish the children.
In December 2011, J.D. was in bed in the same bedroom as Drop and Elena when
she heard them beginning to have sexual intercourse. J.D. knocked on her headboard to
let them know she was awake. In response, Drop said to J.D., “[C]ome on, why don’t
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you play with your fingers down there and let mommy have fun . . . .” This comment
caused Elena to conduct online research regarding child sexual abuse. Her searches
included “stepfather inappropriate touching [of] teen,” “warning signs of sexual abuse in
teenagers,” and “behaviors to watch for when adults are with children . . . .”
Later that month, J.D. and Drop got into an argument, and J.D. texted Elena to ask
her to come home. When Elena arrived, a fight commenced. Eventually, Drop pulled
J.D. by the hair and Elena by the arm and threw them out of the house. Elena called the
police. Later that day, Elena and J.D. met with a counselor to obtain a restraining order.
During this meeting, J.D. disclosed the sexual abuse. J.D. appeared to be “very upset,”
“was crying,” and “was scared.”
About a year before J.D. disclosed the abuse, she told three of her close friends
that Drop had been sexually abusing her. J.D.’s friends urged her to tell her mother about
the abuse. J.D., however, “said she didn’t want to break up the relationship between her
mom and dad.”1
B. Defense Case
Drop denied that he sexually abused J.D. and asserted there was no evidence that
he had engaged in sexual intercourse with her. He claimed she was prone to exaggeration
and suggested she was untrustworthy. He agreed that some of the incidents described
had occurred, but characterized them differently. Regarding the domestic violence
incident, he asserted that Elena had attacked him and J.D. had intervened to protect him,
and that J.D. had opened the door to allow Drop to push Elena out of the house. Drop
believed there was a “conspiracy against [him] regarding this case,” and argued at closing
that J.D. and Elena created a story about the sexual abuse to facilitate the divorce and to
ensure Elena received custody of the children.
1
The prosecution also presented CSAAS evidence and evidence of the uncharged
offense of possession of child pornography. This evidence will be discussed in more
detail in the analysis of Drop’s challenges on appeal.
3
II. DISCUSSION
A. Admission of CSAAS Evidence
Drop contends that the trial court abused its discretion by permitting Dr. Blake
Carmichael to testify regarding CSAAS. He also argues that the trial court erred by
allowing Dr. Carmichael to testify regarding the statistical frequency with which children
fabricate claims of sexual abuse. We find that the challenge to the admission of Dr.
Blake’s testimony regarding CSAAS is without merit, and that any challenge to the
admission of the statistical evidence was forfeited.
1. Background
Prior to trial, the prosecution noticed its intention to admit expert testimony on
CSAAS. At an in limine hearing, defense counsel objected on the ground that CSAAS
evidence would not be relevant. The prosecution argued it was relevant based on the
“[l]ate discovery” of the abuse and J.D.’s “reluctance to disclose [based on] fear of [the]
family dynamic being overturned and uprooted . . . .” The trial court ruled that “in light
of the delay of disclosure and the family dynamic” it would allow Dr. Carmichael to
testify about CSAAS.
Prior to Dr. Carmichael’s testimony, the trial court revisited the issue of the
CSAAS testimony. The prosecution noted that while it believed J.D.’s testimony had
gone “fairly well” from the standpoint of explaining the late disclosure, defense counsel
had nevertheless asked pointed questions about the nature of J.D.’s disclosure. The
prosecution asserted that Dr. Carmichael’s testimony could explain to the jury “why
there’s late disclosure. Why there’s a feeling of helplessness. Why there’s a fear of the
family dynamic breaking up.” Defense counsel argued that the testimony would not
assist the jury. Defense counsel noted that during jury selection, “it appeared to me that
they all seemed to understand that if someone is truly abused, that they may not tell right
away.” Defense counsel also noted that J.D. “was very clear and she explained herself. I
believe [the jury] got it.”
4
The trial court again agreed to allow the CSAAS expert testimony. As an initial
matter, the court “did find that several of the areas that the witness intends to address
were addressed by [J.D.].” However, the court determined that “without polling the jury
to determine . . . whether or not they found [J.D.] credible on those areas, there’s no way
. . . to determine whether the additional witness would be helpful or necessary or not.
And the Court is not going to preclude the [prosecution] from providing that additional
information.” The court concluded: “[G]iven that this is a case involving late disclosure
and is a case involving other areas that are covered in [CSAAS], the Court will allow the
witness to testify.”
Dr. Carmichael testified that CSAAS seeks to explain how children might react or
respond after they have been sexually abused. Dr. Carmichael cautioned that CSAAS is
not a diagnostic tool, but rather “was intended to educate therapists, social workers[,] and
dispel some of the myths that people hold with regard to this population of kids who we
know have been sexually abused.” Dr. Carmichael affirmed that he had not interviewed
any witnesses and was not familiar with any of the details of the offenses alleged in this
case.
Dr. Carmichael explained that there are five components to the CSAAS
assessment, which may or may not be present in a given case: secrecy, helplessness,
entrapment or accommodation, delayed and unconvincing disclosure, and recanting.
With respect to delayed disclosure, he stated that sexually abused children commonly
delay reporting abuse because of the “power differential” between the abuser and the
child, and because the child often fears negative consequences like “splitting up [the
family] because of something they said.” Dr. Carmichael explained that more than half
of sexual abuse victims do not report the sexual abuse until they are 18 years old. Dr.
Carmichael also explained that when children finally do disclose the abuse, it is often
difficult for them to give consistent or convincing accounts of what happened.
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2. Analysis
“The governing rules are well settled. First, the decision of a trial court to admit
expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is
shown.’ [Citations.] Second, ‘the admissibility of expert opinion is a question of degree.
The jury need not be wholly ignorant of the subject matter of the opinion in order to
justify its admission; if that were the test, little expert opinion testimony would ever be
heard . . . . [E]ven if the jury has some knowledge of the matter, expert opinion may be
admitted whenever it would “assist” the jury. It will be excluded only when it would add
nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry
is one of such common knowledge that men of ordinary education could reach a
conclusion as intelligently as the witness” ’ [citation].” (People v. McAlpin (1991) 53
Cal.3d 1289, 1299-1300 (McAlpin).) A trial court’s decision to admit or exclude CSAAS
expert testimony is reviewed for abuse of discretion. (Id. at p. 1299.)
“ ‘[CSAAS] expert testimony is needed to disabuse jurors of commonly held
misconceptions about child sexual abuse, and to explain the emotional antecedents of
abused children’s seemingly self-impeaching behavior.’ ” (McAlpin, supra, 53 Cal.3d at
p. 1301.) There are, of course, limitations on the use of CSAAS evidence. “First, the
CSAAS evidence must be addressed to a specific ‘myth’ or ‘misconception’ suggested by
the evidence. [Citation.] Second, ‘if requested the jury must be admonished “that the
expert’s testimony is not intended and should not be used to determine whether the
victim’s molestation claim is true . . . . The evidence is admissible solely for the purpose
of showing that the victim’s reactions as demonstrated by the evidence are not
inconsistent with having been molested.” ’ ” (People v. Housley (1992) 6 Cal.App.4th
947, 955.)
In this case, the trial court reasonably concluded that expert testimony about
CSAAS evidence would be helpful to assist the jury by disabusing the jurors of
commonly held misconceptions about child sexual abuse victims. As McAlpin makes
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clear, expert testimony is admissible if it will add to the jury’s knowledge about a subject,
unless that topic is a matter of common understanding for persons of average intelligence.
While information about child sexual abuse is more readily available than in the past, it
hardly qualifies as a matter of “common knowledge” for the average juror. As a result of
Dr. Carmichael’s experience in the field, he possessed more knowledge than jurors about
the behavior of child sexual abuse victims, and the information he provided on CSAAS
promoted a more thorough understanding of the seeming inconsistencies that can appear
between the minor’s testimony of abuse and her behavior at the time of the abuse.
J.D.’s testimony raised issues concerning two of the five categories of behaviors
addressed by the CSAAS testimony: J.D.’s report of abuse occurred long after the abuse
started and she continued to return to the home where Drop abused her. The CSAAS
evidence was in this way linked to specific and common misconceptions regarding
children who report sexual abuse. Dr. Carmichael’s testimony thus gave the jury
important contextual information about how child sexual abuse victims may react so that
the jury could understand “ ‘the emotional antecedents of abused children’s seemingly
self-impeaching behavior’ ”—here, delayed reporting, and continued contact with the
perpetrator of the acts. (McAlpin, supra, 53 Cal.3d at p. 1301.)
Drop nonetheless contends that the CSAAS evidence was unnecessary, and
therefore irrelevant, because during voir dire the jurors indicated that they understood
that a child sexual abuse victim may not report the abuse immediately. Drop also notes
that J.D. testified articulately about the delayed disclosure and thus the jury needed no
help to understand it. Drop, however, identifies no authority for a requirement that the
prosecution demonstrate that any individual juror hold or not hold preconceived notions
about child sexual abuse to admit the CSAAS evidence. Common sense also indicates
that neither the trial court nor trial counsel can predict the questions that might be posed
in a juror’s mind when actually hearing the testimony of a child witness, even a juror who
might express an acquaintance with issues surrounding child abuse. Nor is there any rule
7
that CSAAS evidence is irrelevant if the abuse victim articulately explains the reasons for
delayed disclosure. Rather, the relevant standard is whether the information will assist
the jury in understanding an area outside of their common knowledge and whether the
CSAAS evidence was directed at a myth or misconception raised by the evidence.
(McAlpin, supra, 53 Cal.3d at pp. 1299-1300.) Even if the jury “ ‘has some knowledge’ ”
of delayed disclosure, such knowledge is not expertise, and the evidence is nevertheless
admissible so long as the information would assist the jury. (Id. at p. 1300.) Because the
CSAAS testimony here involved an area beyond the expertise of the average juror and
addressed misconceptions that were logically raised by J.D.’s testimony, the trial court
did not abuse its discretion by permitting Dr. Carmichael to testify.
B. CSAAS Statistical Evidence
Drop argues that Dr. Carmichael’s testimony about the false reporting of sexual
abuse exceeded the scope of legitimate CSAAS testimony and that the trial court
therefore admitted it in error. The Attorney General contends that the issue is forfeited
because defense counsel failed to object to the challenged testimony. We agree with the
Attorney General.
1. Background
During Dr. Carmichael’s cross-examination, defense counsel questioned him
about false allegations of child sexual abuse: “Doctor, if a teenager fabricates an
allegation of molestation, they can say it happened right now or it’s happening right now;
right? They can say that; correct?” Dr. Carmichael responded: “People can lie about
something that’s happened to them. There’s actually a lot of research that talks about
false allegations made by children. The statistics are very low where a child initiated
disclosures of sexual abuse. It’s zero and 2 percent of allegations by children have been
found to be false. So it can be that kids can lie about it.” Defense counsel sought
clarification: “But you just said, though, the child initiated it, allegations; correct?” Dr.
Carmichael responded: “I did.” Defense counsel continued: “Right. So aren’t the
8
statistics higher for . . . they found false allegations to be higher where it’s someone else
other than the child that initiated the allegation, the disclosure, excuse me.” Dr.
Carmichael responded: “So the research that has higher rates of false allegations is with
regards to custody disputes. And so in those cases they found . . . higher false allegation
rates, like 38, 40 percent. Again, those are all made by the parents in the custody dispute.
Even in more of a contemporary research where they looked at false allegations where
there’s no custody or child access issues in play, even then the false allegation rates were
like from zero to four [percent] with the adults and closer to zero [percent] for the kids.
So the false allegation rates outside of custody disputes is quite low.” Defense counsel
then moved on to a separate and unrelated line of questioning.
2. Analysis
Evidence Code section 353, subdivision (a)2 provides that a verdict or finding will
not be set aside by reason of an erroneous admission of evidence unless “[t]here appears
of record an objection to or a motion to exclude or to strike the evidence that was timely
made and so stated as to make clear the specific ground of the objection or motion.” The
California Supreme court has “ ‘ “consistently held that [a] ‘defendant’s failure to make a
timely and specific objection’ on the ground asserted on the appeal makes that ground not
cognizable.” ’ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
Drop argues that defense counsel’s general objections to the CSAAS evidence
were sufficient to preserve a challenge to the statistical evidence on appeal. We disagree.
Drop objected to the admission of the CSAAS evidence in limine, arguing that it was
unnecessary and irrelevant. The failure to raise a timely and specific objection forfeits a
claim on appeal that evidence was erroneously admitted. (§ 353, subd. (a).) Defense
counsel’s general objection to the admission of the CSAAS testimony did not include an
2
Subsequent statutory references are to the Evidence Code.
9
objection that the statistical evidence was unreliable or misleading, or that it exceeded the
scope of what the trial court had allowed as admissible in its previous evidentiary ruling.
However, here it also appears there was no objection because defense counsel
specifically elicited the challenged statements on cross-examination, voiced no
contemporaneous objection, and did not subsequently move to strike the evidence. On
the contrary, defense counsel delved further into the data, asking a follow-up question
about “statistics . . . where it’s someone else other than the child that initiated the
allegation, the disclosure . . . .” Defense counsel’s questions appear designed to raise
doubts regarding J.D.’s credibility based on what counsel clearly hoped would be
testimony from the prosecution expert that a certain percentage of children falsely report
abuse, often encouraged by a parent in a family law custody dispute. The choice to
pursue this line of questioning was not illogical as Drop testified that the genesis of the
reported abuse was a conspiracy, and counsel later argued to the jury that Elena’s desire
for custody of the children in her divorce from Drop was the cause of J.D.’s report of
abuse. The fact that the defense strategy did not work does not negate the fact that the
lawyer deliberately probed the area now challenged on appeal, a decision to which we
defer. (People v. McDermott (2002) 28 Cal.4th 946, 993 [“Such matters as whether
objections should be made and the manner of cross-examination are within counsel’s
discretion and rarely implicate ineffective assistance of counsel. [Citation]”]; People v.
Stanley (2006) 39 Cal.4th 913, 954 [“ ‘ “[W]e accord great deference to counsel’s tactical
decisions” [citation], and we have explained that “courts should not second-guess
reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation].
“Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must
be evaluated in the context of the available facts.” [Citation.]’ ”].) Because Drop failed to
specifically object to the challenged testimony, his challenge to its admission on appeal is
forfeited.
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C. Instruction on CSAAS Evidence
Drop argues that the jury instruction applicable to CSAAS expert testimony was
unduly confusing and “no jury would understand [that] the CSAAS evidence was
inadmissible to prove the truth or falsity of the complaining witness’s accusation.” We
do not agree.
1. Background
The jury was instructed on the permissible use of CSAAS evidence with
CALCRIM No. 1193 as follows: “You’ve heard testimony from Dr. Blake Carmichael
regarding [CSAAS]. The doctor’s testimony about [CSAAS] is not evidence that the
defendant committed any of the crimes charged against him. You may consider the
evidence only in deciding whether or not [J.D.’s] conduct was not inconsistent with the
conduct of someone who has been molested and in evaluating the believability of her
testimony.” In arguing that CALCRIM No. 1193 is erroneous, Drop highlights the last
portion of the instruction, which states that the jury may consider the evidence “in
evaluating the believability of [J.D.’s] testimony.”
2. Analysis
We review de novo whether a jury instruction correctly states the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.) In so doing, we consider the instructions as a whole
to determine whether there is a “ ‘reasonable likelihood that the jury construed or applied
the challenged instruction in an objectionable fashion.’ ” (People v. Osband (1996) 13
Cal.4th 622, 679.) We assume the jurors are “capable of understanding and correlating
all jury instructions which are given.” (People v. Romo (1975) 47 Cal.App.3d 976, 990,
disapproved on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
In People v. Gonzales (2017) 16 Cal.App.5th 494 (Gonzales), the defendant
argued that “the misleading language of CALCRIM No. 1193 allowed the CSAAS
testimony to be used as proof that [the victim] was molested,” and that it was “impossible
to use CSAAS testimony to evaluate the believability of [the victim’s] testimony without
11
using it as proof that [defendant] committed the charged crimes.” (Id. at p. 503.) The
Court of Appeal rejected these arguments, noting that the instruction was given in the
context of the expert’s testimony that CSAAS is a tool to understand a child’s reactions
when she claims she has been abused and is not to be used to determine whether the
abuse has occurred. (Id. at pp. 503-504.) The court held that a “reasonable juror would
understand CALCRIM No. 1193 to mean that the jury can use [the CSAAS] testimony to
conclude that [the victim’s] behavior does not mean she lied when she said she was
abused. The jury also would understand it cannot use [the expert’s] testimony to
conclude [the victim] was, in fact, molested. The CSAAS evidence simply neutralizes
the victim’s apparently self-impeaching behavior.” (Id. at p. 504.)
As in Gonzales, we conclude that no reasonable juror could have concluded from
the language of CALCRIM No. 1193 that he or she could properly use the CSAAS
evidence as a basis for determining whether the charged offenses occurred. Here, Dr.
Carmichael testified that CSAAS is only an educational tool used to dispel common
myths about sexual abuse, and it is not a diagnostic tool to prove that sexual abuse
occurred. Further, CALCRIM No. 1193 told the jury that the CSAAS evidence “is not
evidence that the defendant committed any of the crimes charged against him.” (Italics
added.) It also told the jury that the they could “consider this evidence only in deciding
whether or not the conduct of [J.D.] was not inconsistent with the conduct of someone
who has been molested and in evaluating the believability of her testimony.” We must
presume the jury followed the court’s instructions. (People v. Wilson (2008) 44 Cal.4th
758, 834.)
While it is true that evaluating an alleged sexual abuse victim’s “believability”
may ultimately assist the jury in determining whether to credit the victim’s testimony that
the abuse occurred, the same may be said of any evidence that is admitted solely on the
issue of a witness’s credibility. (See People v. Brackins (2019) 37 Cal.App.5th 56, 70-72
[expert testimony about intimate partner violence “could properly be used by the jury to
12
evaluate” the believability of victim’s abuse claims].) As CSAAS evidence may properly
be used to determine whether a child-victim’s conduct was inconsistent with that of a
person who has been abused, it is properly used to evaluate a child-victim’s credibility.
Read as a whole, the instruction properly advised the jury on the limited purpose to which
it could put CSAAS evidence. Thus, the trial court did not err in giving CALCRIM No.
1193.
Drop also suggests that the trial court erred by not giving an immediate
“preinstruction or caution” before or after Dr. Carmichael’s CSAAS testimony.
Although he cites cases where the trial court gave a pre-testimony limiting instruction
and a post-testimony admonishment—People v. Brown (2004) 33 Cal.4th 892 (Brown)
and People v. Patino (1994) 26 Cal.App.4th 1737 (Patino)—neither Brown nor Patino
held that such actions were necessary or required. Drop directs us to no authority that
requires a trial court to give additional instructions or admonishments immediately
before or after CSAAS testimony, although this is the better practice. We find no error in
the trial court’s decision not to give such a preinstruction or caution.
D. Admission of Child Pornography Images
Drop argues that the trial court erred by admitting evidence of the uncharged
crime of child pornography. We conclude that the court properly exercised its discretion.
1. Background
San Jose Police Detective Michelle Hinch testified as an expert in computer
forensic examination. During the course of the investigation, Detective Hinch performed
a forensic analysis of the hard drives of a computer recovered from Drop’s home. She
found that the computer had separate user accounts for Drop, J.D., A.D., and an
administrator. The separate user accounts were protected by passwords. Drop testified
that the account names and passwords were written down and easily accessible to anyone
who used the computer. Under Drop’s user account, Detective Hinch found two images
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of child pornography in a temporary internet files folder.3 Detective Hinch testified that
temporary internet files are created automatically by the computer’s operating system
after viewing a web page in order to load web pages quicker the next time a user tries to
access them; it is not intentionally created by the user. Detective Hinch noted there was
no way to tell how long the user viewed the child pornography images. She also
acknowledged it was “possible” that the image was the “size of . . . a thumb nail pop-up”
in a “very small square in a corner of a computer screen.”
Drop moved in limine to exclude the two child pornography images. He argued
that the images were not relevant and that there was “no proof” that he accessed the
images or “had possession over any of [the] images found” on the computer. Drop also
argued that the images were more prejudicial than probative because the label of child
pornography would lead jurors to “convict [him] in their head[s] before listening to any
testimony.” Because the images depicted child pornography, and the charges before the
jury involved child sexual abuse, the prosecution sought to present the images as
permissible propensity evidence under section 1108.
After hearing argument, the trial court determined that the images were admissible
under section 1108. The court found there was sufficient foundation for the jury to find
by a preponderance of the evidence that the images constituted child pornography and
were in Drop’s possession. The court noted that the images were attributed to a folder
belonging to Drop and were not stored in unallocated space on the hard drive. The court
also noted that while there were other people who had access to the computer, “they had
their own folders and they used their own folders when they were using the computer.”
3
Detective Hinch explained that “it was on the hard drive in Documents and
Settings under the user Robert/local settings/temporary internet files/content.i.e.5, and
then there’s a long number, folder, that the operating system creates that it was inside
that.” The characterization of the images as child pornography was not disputed by Drop
at trial and is not challenged on appeal.
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2. Analysis
“Section 1108 is an exception to the general prohibition against admitting
character evidence to prove criminal disposition or propensity. [Citations.] In a sexual
offense prosecution, the statute permits the admission of evidence that the defendant
‘committed other sexual offenses to prove his propensity to commit the charged sexual
offense[],’ so long as the evidence is admissible under section 352. [Citations.] (People
v. Jandres (2014) 226 Cal.App.4th 340, 352-353, fn. omitted. (Jandres).)
“[T]he admissibility of uncharged conduct pursuant to section 1108 turns on the
existence of a preliminary fact—namely, that the uncharged conduct constitutes a
statutorily-enumerated ‘sexual offense.’ [Citation.] The trial court must make a
preliminary determination of whether the proffered evidence is sufficient for the jury to
find, by a preponderance of the evidence, that the defendant committed an enumerated
offense. [Citations.] ‘The decision whether the foundational evidence is sufficiently
substantial is a matter within the court’s discretion.” [Citation.] Accordingly, we review
the trial court’s determination of this preliminary fact under the abuse of discretion
standard.” (Jandres, supra, 226 Cal.App.4th at p. 353.)
“If we find no abuse of discretion, we consider whether the evidence nevertheless
should have been excluded under section 352 because its prejudicial effect outweighs its
probative value. We also review the trial court’s decision in that regard for abuse of
discretion. [Citation.]” (Jandres, supra, 226 Cal.App.4th at pp. 353-354.) Under section
352, “[t]he evaluation of the potential for prejudice must consider numerous factors,
including ‘[the prior sex offense’s] nature, relevance, and possible remoteness, the degree
of certainty of its commission and the likelihood of confusing, misleading, or distracting
the jurors from their main inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the defendant in defending against the
uncharged offense, and the availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant’s other sex offenses, or
15
excluding irrelevant though inflammatory details surrounding the offense.’ [Citation.]
Other relevant factors include whether the uncharged acts are more inflammatory than the
charged conduct, the possibility the jury might confuse the uncharged acts with the
charged acts and seek to punish the defendant for the uncharged acts, and the time
required to present the evidence of the uncharged acts.” (People v. Daniels (2009) 176
Cal.App.4th 304, 316-317.)
Penal Code section 311.11, subdivision (a), describes possession of child
pornography as “knowingly possess[ing] or control[ing]” a “representation of
information, data, or image” that involved a person under 18 years old on, among other
things, any “computer hardware” or “data storage media . . . .” In this case, both of the
images that the prosecution introduced as evidence at trial were discovered under Drop’s
user account, which was password-protected. In addition, the files were found in a folder
that was created automatically by the computer’s operating system when the user visited
a particular website where the image was displayed. Although Drop argued that other
people had access to the computer and could have generated the child pornography
images, the trial court found that the computer’s users had and appeared to use their own
accounts. Thus, the trial court properly found that there was sufficient evidence for a jury
to conclude, by a preponderance of the evidence, that Drop possessed child pornography.
In arguing that there was insufficient evidence to establish his possession or
control of the images, Drop cites to a number of federal cases. He contends there was no
evidence of knowing possession of child pornography image files, especially in light of
the fact that they were in a temporary internet folder. This argument and its reliance on
federal cases, however, is unavailing here. Crucially, the language of Penal Code section
311.11, subdivision (a), is “material[ly] differen[t] from the federal pornography statute”
found at title 18 of the United States Code, section 2253(a)(5)(B). (Tecklenburg v.
Appellate Division (2009) 169 Cal.App.4th 1402, 1418 (Tecklenburg).) In particular,
“the federal statute does not make it illegal to knowingly possess or control an image of
16
child pornography; only to knowingly possess the material containing the image. In the
context of computer child pornography, it is understandable that the federal courts have
focused, therefore, on the data stored in the computer’s files as that which is illegal under
the federal statute to possess. Without knowledge of such files, there can be no
‘knowing’ possessing under the federal statute.” (Id. at pp. 1418-1419.) “[T]he language
of [Penal Code] section 311.11, subdivision (a) is not so limited,” as it “makes it directly
illegal to knowingly ‘possess[] or control’ any ‘image’ of child pornography.” (Id. at p.
1419.) Thus, under California law, a defendant may violate Penal Code section 311.11,
subdivision (a) even if there is no evidence that “defendant was aware of the [temporary
internet files] or cache” where the images were stored. (Tecklenburg, at p. 1419.) Thus,
the trial court did not abuse its discretion in finding that there was sufficient foundation to
admit the evidence of the uncharged offense of child pornography.
We now turn to whether the evidence should have been excluded as more
prejudicial than probative under section 352. Under the standard articulated above, we
conclude that the trial court did not abuse its discretion when it found the evidence
admissible under section 352. First, the evidence that Drop possessed child pornography
was relevant and highly probative of his attraction to young girls. Evidence of child
pornography “ ‘presented in the content of [a] defendant’s possession of them[] yield[s]
evidence from which the jury could infer that he had a sexual attraction to young [girls]
and intended to act on that attraction.’ ” (People v. Avila (2014) 59 Cal.4th 496, 519.)
Second, the uncharged conduct of possessing two child pornography images was
significantly less inflammatory than the charged acts, which involved numerous acts of
sexual abuse and sexual assault of a child, including aggravated sexual assault, with the
earliest acts occurring when J.D. was just six or seven years old. Given the nature of the
charges, it is improbable that the jury was confused by the uncharged acts, or were led to
punish Drop by convicting him of the charged sexual assault on J.D. because he
possessed images of child pornography.
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Finally, the admission of the uncharged crime evidence did not consume an undue
amount of time. Section 352 requires that evidence be excluded only if its probative
value is “substantially” outweighed by the undue consumption of time. Here, the trial
spanned five days of testimony and over 900 pages of court reporter’s transcript. The
testimony on the child pornography images occurred on a portion of a single day and
comprised only 26 pages of transcript. Because the evidence was highly probative of
Drop’s attraction to young girls and the consumption of time was not undue, the salacious
nature of the images and the stigma attached to the possession of such images did not
substantially outweigh the probative value of the evidence. Accordingly, the trial court
did not abuse its discretion in admitting the evidence of the uncharged offense of
possession of child pornography.
E. Instruction on Possession of Child Pornography
Drop contends that the jury instruction given regarding the uncharged offense of
possession of child pornography misstated the law. He argues it was incorrect to tell the
jury “that child pornography charges apply to one who ‘knowingly possesses or controls’
the image at issue.” We do not agree.
1. Background
The trial court gave the following instruction: “The People presented evidence
that the defendant committed the crime of possession of child pornography that was not
charged in this case. This crime is defined for you in these instructions. You may
consider this evidence only if the People have proved by a preponderance of the evidence
that the defendant, in fact, committed the uncharged offense.”
In relevant part, the trial court instructed on Penal Code section 311.11,
subdivision (a), as follows: “Every person who knowingly possesses or controls matter
or representation of the information, image, data, or movie, the production of which
involved the use of a person under the age of 18 years, knowing that the matter depicts a
person under the age of 18 years personally engaging in or simulating sexual conduct,
18
masturbation, or exhibition of the genitals or pubic or rectal area or sodomy. [¶] In order
to prove the crime, each of the following elements must be proved. Every person who:
[¶] (1) Knowingly possesses or controls; [¶] (2) Any matter, the production of which
involves the use of a person under age 18; and [¶] (3) Knowledge that the matter depicts
a person under 18 engaging in sexual conduct.”4
2. Analysis
Drop challenges the trial court’s use of the phrase “knowingly possesses or
controls” in the instruction. He points to the definition of possession in other CALCRIM
instructions, specifically possession of drugs and possession of a controlled substance, as
more accurate. The challenged language, however, is drawn directly from Penal Code
section 311.11, subdivision (a). “By its plain language [Penal Code] section 311.11,
subdivision (a), prohibits either possession or control of any child pornography.”
(Tecklenburg, supra, 169 Cal.App.4th at p. 1418.) In that respect, the special instruction
accurately stated the elements of the offense of possession of child pornography, as
reflected in the relevant statute. Drop’s reliance on the definitions of possession in
unrelated CALCRIM instructions is therefore irrelevant.
F. Cumulative Error
Drop argues that even if the errors he asserts were not individually reversible, their
cumulative effects prejudiced his right to a fair trial and warrant reversal. Because we
find no errors, however, there is no cumulative prejudice.
III. DISPOSITION
The judgment is affirmed.
4
The instruction was proposed by the prosecution “in light of the fact [Penal Code
section] 311.11 [subdivision (a)] does not have a [CALCRIM] jury instruction.”
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_______________________________
Greenwood, P.J.
WE CONCUR:
_______________________________________________
Bamattre-Manoukian, J.
______________________________________
Grover, J.
People v. Drop
No. H044970