RICHLI, J.
An investigator with the Riverside County Sheriff's Department Sexual Predator Internet Decoy (SPIDER) team posed as a 13-year-old girl on an Internet chat room,
Defendant was found guilty by a Riverside County jury of attempting to employ a minor to commit prohibited acts (Pen. Code, §§ 664/311.4, subd. (c))
Defendant now claims on appeal that the evidence was insufficient to support his convictions; the trial court failed to instruct the jury on the lesser offense of knowingly sending or exhibiting harmful material to a minor; his rights to due process under the federal Constitution were violated by the admission of video titles found on his computer purporting to be of child pornography and pornographic images also found on his computer; his Fifth and Fourteenth Amendment rights to due process were violated by admission of expert testimony; the prosecutor committed misconduct by arguing facts not in evidence in violation of his rights to a fair trial, to confront and cross-examine witnesses, and to due process guaranteed by the federal and state Constitutions; and cumulative errors warrant reversal.
Riverside County Sheriff's Department Investigator Lori Piccini had been assigned to the SPIDER team for three years. Investigator Piccini explained that as a member of the SPIDER team, she acted as an underage decoy in Internet chat rooms looking for persons who used the Internet to harm children, i.e., sexual predators.
In 2008, Investigator Piccini set up a profile under the name of Stephanie Miller and screen name of "Wanabebarbi." Her profile stated that she was 13 years old and that she lived with her mother. A picture of a 13-year-old girl was posted with the profile.
On November 12, 2008, she logged on as Stephanie and went into a Los Angeles area chat room from her office in Riverside. She received a message from the screen name of "ajriverside" under a private chat feature. The name on the profile was "Alfred Joseph Hora," i.e., defendant. After this initial contact, defendant communicated with "Stephanie" 15 times between November 2008 and February 2009.
According to the chat logs, defendant initially asked Stephanie her age, sex, and where she lived. Stephanie responded, "13 F Temecula." Defendant responded that in her photograph she did not look 13 years old. He told her that she was "hot" but that he was "way older" than she. He asked for more pictures of her. He told her that he could get in trouble for chatting with her because she was underage but again said that she was "hot." He warned her that she was young and that there were a lot of predators on the Internet.
Defendant asked if Stephanie had a boyfriend and she indicated she had an ex-boyfriend. He then asked her if she was a virgin, and she responded that she was. He asked what she had done with her ex-boyfriend. She said that they had kissed, and she had given him a "[b]low job." He asked if she "swallowed" or "spit," and when she responded that he had ejaculated into a towel, defendant said that she was missing something by not letting him ejaculate in her mouth. He told her that she was still young and that she would find out when she was older.
Defendant then asked, "Did he eat you?" Stephanie asked what he meant, and he responded, "Go down on you." She told him no. Defendant told her that if she had been with someone older he would have "definitely eaten you out." He asked if she had watched "porn" before, and she told him no. Defendant then asked her if she "played with" herself, and she stated that she had masturbated. They discussed how she had done it.
Defendant asked her if her ex-boyfriend's penis was large. He then sent pictures of his penis to Stephanie. He asked her if she liked it. He asked Stephanie the last time she had masturbated. She said she learned how to do it at school in the sexual education class and talking with her friends.
Defendant told Stephanie that he was a paramedic. He asked if she lived in Riverside, and she said that she did. He said he would take her to the movies if she were old enough.
During subsequent conversations, defendant asked her if she wanted to come over to his house but she said she did not drive. He then said he was just "kidding." Stephanie stated that her father lived in Corona, and defendant said that she would be closer to him there. He told her to tell him when she was in Corona or went to the mall.
Defendant admonished Stephanie to keep their relationship secret. He asked her if she had a cellular telephone. He again asked for another photograph and asked when was the last time she masturbated. He asked her when she was going to get "laid," and he told her he had when he was 16.
During the next conversation, defendant again asked for another picture. She told him that the camera on her computer was broken. Defendant told her to use another camera and send him the pictures. Stephanie sent another fake picture to defendant (presumably clothed).
Defendant then inquired about her giving her ex-boyfriend a "blow job." He asked if he could put his penis in her "pussy." She responded that she was afraid it would hurt. He asked her how many fingers she put in her vagina when she masturbated, and she responded only one. Defendant told her to put two fingers in her vagina while they were chatting online. She told him it did not hurt, and defendant told her that if she could put three fingers in, that was how large his penis would be inside her.
Defendant then stated that he really wanted to see her. Stephanie told him that she could try to have her father drop her off at a movie with one of her friends. Defendant told her that she could not tell anyone about him, including her friends. Defendant again asked her to take more pictures and send them to him.
Defendant told her that he was hoping to see her, but she said her father would not take her to the mall. Defendant then suggested that he sneak into her room that night, but she told him her room was upstairs by her mother's bedroom.
On another occasion, Stephanie told him that she was making pancakes, and he responded, ". . . I want to eat you for breakfast." He asked her to turn on her camera on the computer so that he could watch her eat breakfast, but she reminded him the camera was broken. Defendant told her, "You should use your hands with syrup all over it and jack me off." Defendant asked her to orally copulate him when they met up. He again said that he wanted to have sex with her, but she stated that she was afraid it would hurt. He promised he would go slow. Defendant later sent her a message with his actual telephone number.
The next time they spoke, they discussed defendant coming to her house to have pizza and watch movies. Defendant asked if she would orally copulate him, and she said that she would if he was nice to her. Defendant asked her to use her house phone to call him, but she said she was afraid her mother would find out.
Defendant told her that he wished he could watch her take a bath. He asked if her camera on her computer was fixed, and she told him no.
During their next chat, defendant again asked Stephanie for more pictures. He told her that he wanted to have "lots of sex." When she asked defendant if he wanted her to be his girlfriend, he responded, "Be my fuck buddy." He then said he was kidding because she was too young.
The next time they chatted, defendant told her that he wanted to see her. He said it was better for them to meet at her mother's house because they could have "fun." She asked him what he wanted to do, and he responded, "I want to go down on you." He then told her that he wanted to do "69" with her and described what they would do. He asked her if her "pussy" was "shaved." He again asked if she had masturbated. He told her it would feel better "if my tongue is running all over that pussy." He then asked her to describe her "pussy" for him. He told her she should take a picture of it and send it to him. He then asked her to masturbate while he was talking to her.
On another occasion, Stephanie asked defendant to do her homework for her, and he asked what he would receive in return. They discussed that she would give him a "blow job" in exchange for doing her homework.
The last chat occurred on February 5, 2009. Stephanie asked defendant to come over to her house, but he was concerned that her mother would catch them and he would get in trouble; he assured her that he would come over if they would not get caught. They discussed that it was cold outside, and defendant told her he liked to have sex in this kind of weather and to cuddle naked. He admitted he would not be able to help himself, and he would "put it inside [her]." He said he would "pop [her] cherry." He assured her it would not hurt.
Investigator Piccini executed a search warrant at defendant's residence on February 10, 2009. She interviewed defendant at his home, and the interview was played for the jury.
Defendant's computer was seized. The jury was informed the following video titles were found on the computer, which he viewed during the time he was chatting with Stephanie: (1) "Two 13-years-old little girls gets come in face, dot dot dot, kiddie," (2) "HC-Babysitter Edena Preteen Incest Teenage," and, (3) "Good boyfriend videos then screws 15-year-old."
Defendant makes two insufficient evidence claims: (1) the evidence does not support his conviction for attempted employment of a minor to engage in prohibited acts, and (2) there is insufficient evidence of attempted sending harmful material to arouse and seduce a minor.
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
"Because `we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence . . .' [citation], the effect is that on appeal `a defendant challenging the sufficiency of the evidence to support her conviction "bears a heavy burden," [citation] . . .' [citation] of showing insufficiency of the evidence and must do so in accordance with well-established standards [citation]." (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)
Defendant claims that the evidence was insufficient to show that defendant took a direct step toward violating section 311.4, subdivision (c) to support his conviction of attempt to commit the crime.
"Enacted in 1961, section 311.4 is part of a statutory scheme `"to combat the exploitive use of children in the production of pornography.'" [Citation.] The statute is `aimed at extinguishing the market for sexually explicit materials featuring children.' [Citation.]" (People v. Cochran (2002) 28 Cal.4th 396, 401-402.)
A defendant violates section 311.4, subdivision (c) if he "`(1) knowingly have caused a child, (2) who is known or should be known to be a child, (3) to participate in the production of any representation of sexual conduct by a child . . . .' [Citation.]" (People v. Thompkins (2010) 185 Cal.App.4th 1253, 1263 [Fourth Dist., Div. Two].) Subdivision (2) of section 311.4 provides that "sexual conduct" includes "exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer . . . ." "The offense is limited to visual works that depict sexual conduct by children below a certain age." (People v. Cantrell (1992) 7 Cal.App.4th 523, 542.)
Our Supreme Court has held, "An attempt to commit a crime is comprised of `two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.' [Citation.] Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. [Citations.]" (People v. Medina (2007) 41 Cal.4th 685, 694; see also People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) "Although a definitive test has proved elusive, we have long recognized that `[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.' [Citations.]" (Decker, at p. 8.)
Defendant first asked Stephanie to describe her "pussy" for him. He told her to look at it and tell him what she saw. He told her to describe it. She told him that it was "pink." He asked her if she was looking at it. She then said, "And the hair is short. It's like the mound by my legs." Defendant then asked her, "What about the lips?" She asked if they all looked the same. He told her, "Nope. Yours sounds better." She told him they were pink. Defendant then said, "You should take a picture of it and send it to me. Some girls' pussy lips are dark or brown." Stephanie confirmed, "You want a pic of it?" He responded, "Yeah. Is that okay?" Stephanie told him she did not have access to a camera. He then asked her if she had cellular telephone, and she told him that she did not have enough data to do the picture.
Defendant clearly had the intent to commit the crime. He sought to persuade Stephanie to take a photograph of her vagina and send it him at his Internet address. Defendant obviously wanted the picture for his own sexual satisfaction, as he continually inquired as to what her vagina looked like and talked numerous times about engaging in oral sex with her. Defendant was only thwarted in his efforts because Stephanie did not exist, and the decoy claimed that her camera was broken. Defendant continually pressured Stephanie to take pictures of herself, both clothed and unclothed. These actions of attempting to persuade Stephanie to take a picture of her vagina and recommending utilizing her mother's camera or her cellular telephone were an adequate showing of a direct step in an attempt to commit the crime.
Defendant contends that the evidence does not support his conviction for attempted sending of harmful material to arouse and seduce a minor because pictures of his erect penis did not constitute harmful material, and he did not have the intent to seduce Stephanie into engaging in sexual activity with him. Defendant's conviction of this charge was based on sending Stephanie two photographs of his erect penis.
"Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail." (§ 288.2, subd. (a).) "The purpose of section 288.2 is to prohibit using obscene material, as defined in section 313, subdivision (a), `to groom young victims for acts of molestation.' [Citation.]" (People v. Powell, supra, 194 Cal.App.4th at p. 1287.)
"`Harmful matter' means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." (§ 313, subd. (a).) The jury was instructed with this definition. "[T]he question of what is `"patently offensive"' under the community standard obscenity test is essentially a question of fact." (People v. Dyke (2009) 172 Cal.App.4th 1377, 1384 (Dyke).) "`[T]he primary concern' is that the communication be `judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one.'" (Ibid.) The question is whether the material as a whole lacks "serious literary, artistic, political or scientific value for minors." (§ 313, subd. (a).)
In Dyke, the 16-year-old victim testified that she watched television with the defendant and described a naked woman dancing and a view of a naked woman and man from the waist up having sex. (Duke, supra, 172 Cal.App.4th at pp. 1380-1381.) The court found the evidence was insufficient to support that this was "harmful matter." It concluded, "What is missing from this record is any context by which the reasonable trier of fact can make this determination. There is only a bare-bones recital by [the 16-year old] of what she saw: a nude woman dancing and a naked couple having sex, shown from the waist up, and her own characterization of it as `pornography.' Without more, neither we nor the jury are permitted to presume that such content is patently offensive to the average adult, applying statewide community standards." (Id. at p. 1385.)
Here, as opposed to Dyke, the jury was shown the photographs sent to Stephanie. The photographs depict only defendant's erect penis. Defendant cannot contend that these photographs had any "literary, artistic, political or scientific value for minors." Defendant sent the photograph after he asked her if her ex-boyfriend's penis was large. Defendant then asked her if she liked it. Although defendant contends that nudity alone cannot support his conviction,
Further, the evidence established that defendant intended to seduce Stephanie into engaging in sexual activity with him. "[T]he `seducing' intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor. Intending to entice a . . . minor to masturbate . . . does not satisfy the `seducing' intent element . . . ." (People v. Jensen (2003) 114 Cal.App.4th 224, 239-240.)
Here, when defendant sent the photograph of his penis to Stephanie, he asked if she liked it. He later asked her if he could put his penis in her "pussy." When she responded that she was worried it would be hurt, he instructed her to put her three fingers in her vagina because that is what his penis would feel like. He also told her that she should "jack" him "off" with her hand. He also continually asked her to give him a "blow job" when they met up. He told her he was going to "pop" her "cherry" and put his penis inside her. Defendant continually discussed coming to her house (and sneaking into her bedroom) or meeting at the mall. He also gave her his cellular telephone number.
Clearly, the trier of fact could conclude that defendant intended to meet up with Stephanie and engage in sexual contact with her, be it oral copulation or sexual intercourse. Although defendant contends that he never intended to meet with Stephanie, the jury could reasonably conclude that, should the opportunity have arisen, he would have met up with her. As argued by the People, "If defendant never intended to meet up, why is he asking where she is from? Why is he telling her his real name? Where he really lives? Sending her real pictures of himself, if he never intends to talk to her, never intends to meet up with her and commit the crimes he is being charged with." The jury reasonably could reject his claim and find that he sent the photograph of his penis to seduce her into engaging in a sexual act with him.
Based on the foregoing, the evidence supports defendant's convictions.
Defendant claims that the trial court erred by not sua sponte instructing the jury with knowingly sending or exhibiting harmful matter to a minor (§ 313.1, subd. (a)) as a lesser included offense of sending harmful matter to a minor with the intent to seduce the minor (§ 288.2).
"`A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, "`that is, evidence that a reasonable jury could find persuasive'" [citation], which, if accepted, "`would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser `[citation]." [Citation.] `[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]' [Citation.]" (People v. Licas (2007) 41 Cal.4th 362, 366.) "We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]" (Ibid.)
The elements of section 288.2, subdivision (a) were already discussed. Section 313.1, subdivision (a) differs only in that it does not require an intent to seduce or arouse the minor. Section 313.1, subdivision (a) has been found to be a lesser included offense of section 288.2, subdivision (a), and the People do not contest that finding. (People v. Jensen, supra, 114 Cal.App.4th at p. 244.)
In Nakai, supra, 183 Cal.App.4th 499, the defendant sent images of his erect penis to a woman posing as a 12-year-old girl on an Internet chat site. (Id. at p. 501-502, 507-508.) When he sent the photographs, he wrote to the girl asking if she was "`rubbing'" herself and if she would "`ride'" his penis. He also sent her messages asking her if she was masturbating and that he was "`going to cum.'" (Id. at p. 508.) The jury was only instructed on a violation of section 288.2, subdivision (a) and not the lesser included offense of violating section 313.1, subdivision (a). The defendant argued on appeal that the lesser offense instruction should have been given. (Id. at p. 507.)
The court denied that claim, finding, "The record reflects that defendant sent images of his erect penis to [the decoy] with the intent of arousing himself, as evinced by his orgasm. The record further demonstrates that defendant sent images of his erect penis to [the decoy] with the intent of seducing [her], as evinced by his query of whether [the decoy] was `rubbing' herself, and his comment that she would `love' `riding' his penis. Nothing in the Yahoo! chat dialogue reflects that defendant sent images of his penis to [the decoy] for a reason other than arousing himself and seducing [her]." (Nakai, supra, 183 Cal.App.4th at p. 508.) The Nakai court also rejected, based on the discussions, that defendant only intended to have the decoy engage in masturbation and not sexual activity with him. (Id. at pp. 509-510.)
As set forth in detail in part II.C, ante, the evidence that defendant sent the photographs of his erect penis in order to seduce and arouse Stephanie was ample. The only purpose for sending the picture of his erect penis (showing his own arousal) was to seduce Stephanie. He asked if she liked it, and as set forth in detail ante, he continually discussed sexual relations involving her giving him "blow jobs" and having sexual intercourse. He even instructed her to insert three of her fingers into her vagina so she could see that his penis would fit. There simply was no evidence that he sent images of his penis to her for any other reason than to arouse him or seduce her. As such, the trial court had no sua sponte duty to instruct the jury with the lesser included offense of section 313.1, subdivision (a).
Defendant contends that the trial court violated Evidence Code section 352 and that his rights to due process under the Fourteenth Amendment by admitting video titles purporting to be of child pornography.
Prior to trial, the People brought a motion in limine to admit videos found on defendant's computer alleged to show minor children performing sexual acts. They were admissible to show his intent in that he had an interest in minor girls, and the sexual acts depicted in the videos were similar to those described by defendant to the decoy.
At a hearing on the matter, the trial court reviewed six of the videos and excluded two of them. The trial court deferred its ruling on the four remaining videos but noted that it was impossible to discern whether the girls in the videos were underage. The trial court deferred its ruling so the People could establish where the titles of the videos that referenced underage girls originated. The trial court noted that all of the videos were "graphic" and could be disturbing to the jury.
The People later presented to the trial court that the videos on defendant's computer were from LimeWire, which is a system where individuals could share videos. The video titles came from LimeWire and could not be changed until they were downloaded on the computer. The court indicated just the titles of the videos, which included the age of the participants, and not the videos themselves, would be relevant and not prejudicial. Defendant complained they would only serve to put him in a bad light. The People argued the videos themselves were relevant. The trial court responded that the videos were "graphic" and "very, very explosive."
The trial court, however, ruled that, "since either the defendant searched for a title such as 15-year-old child or two 13-year[-]olds or added that description of the videos himself, it seems to me that that may be relevant for the jury to understand that he had downloaded a video that was described as indicated, and if it were, in fact, a child of 15 or two 13-year-olds, that would be child pornography and it would be illegal to possess and would be an indication of his mindset. That would be relevant to whether or not there was intent on his part." The trial court stated, "It's a very slippery slope, but I think this is fair. I think it's appropriate that the jury understands that the defendant did, in fact, have videos on his computer that had that description."
Evidence Code section 1101, subdivision (b) provides, in relevant part: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ." However, even if the evidence is relevant, under Evidence Code section 352, "the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In People v. Memro (1995) 11 Cal.4th 786, the California Supreme Court held that "sexually explicit stories, photographs and drawings of males ranging in age from prepubescent to young adult" were admissible to show the defendant's intent to sexually molest a young boy. (Id. at p. 864.) It ruled that "the photographs, presented in the context of defendant's possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction." (Id. at p. 865.)
The video titles on defendant's computer were probative of defendant's intent. The People, as discussed, ante, were required to show that defendant intended to seduce Stephanie and engage in sexual activity with her to prove his violation of section 288.2. The titles presented to the jury all referred to underage girls engaged in various forms of sexual activity. The evidence also established that defendant viewed these videos during the time that he was speaking with Stephanie. The jury could infer that defendant was attracted to girls Stephanie's age and intended to act on that attraction.
Defendant complains that the trial court viewed the videos and could not determine if the persons depicted were underage. As such, they had little relevance to the charges against him. However, as argued by the People, the videos themselves should have been admitted so that the jury could make the determination whether the girls were underage. The trial court concluded that the videos themselves were "very, very explosive" to watch and compromised by admitting only their titles. This was clearly relevant evidence, and we find the trial court did not abuse its discretion by admitting evidence of the titles.
Moreover, there was no violation of Evidence Code section 352. The titles were in fact damaging to defendant's case because they were highly probative, not because they tended to invoke an emotional bias against defendant. The trial court properly minimized the impact of the videos by not showing their content to the jury. The titles clearly were not more offensive then the photographs of his penis that he sent to Stephanie or the sexual conversations he engaged in with a girl he thought was 13 years old.
In any event, assuming there was an abuse of discretion, reversal is not warranted. The testimony was brief and involved only the titles of the videos. Further, the jury was admonished that they were not to consider the evidence in determining whether he was guilty.
Defendant contends that the trial court erred by admitting opinion testimony of Investigator Piccini that she arrested him because she believed he had completed a crime and that she believed defendant was grooming Stephanie to commit sexual assaults on her.
Investigator Piccini was asked by the People during her testimony why she chose to arrest defendant and not let the chats continue and wait for a meeting. Investigator Piccini responded, "By that point, crimes had been committed. I had pin-pointed him to an actual address. I had physically seen him leave that address. . . . I had confirmed that he does live there based on search warrants returning to there. So I filed the case and wrote the warrant, and the warrant was issued for his arrest; so we served it as soon as it was available." Defendant objected "to the statement of crimes being committed as a legal opinion." The trial court responded it was going to allow the statement, "but only as in the opinion of the officer."
The People then asked Investigator Piccini to define the term "grooming." Investigator Piccini explained that it was associated with predators and pedophiles who try to befriend their victim. Grooming involved engaging in sexual conversations in order to desensitize the victim as to sexual behavior to make it commonplace and familiar to the victim. In almost every case involving a sexual predator that Investigator Piccini had been involved with, the predator used grooming.
Investigator Piccini was given a hypothetical of a 28-year-old male chatting online with a 13-year-old girl that involved sexual conversations mixed with normal conversation occurring over a little less than three months and asked if this was indicative of grooming. Further, if this person asked the 13 year old where she lived, gave out his phone number, asked for the 13 year old to take a picture of her vagina, wanted other pictures, and kept interjecting sexual conversation, was that the person "intending to meet up with you and perform sexual acts that you guys were talking about?" Defendant objected, and Investigator Piccini was allowed to respond, yes.
To be admissible, expert opinion testimony must be "[r]elated to a subject that is sufficiently beyond common experience" so that the opinion "would assist the trier of fact . . . ." (Evid. Code, § 801, subd. (a).) The jury need not be wholly ignorant of the subject matter of the opinion to justify its admission; even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. (People v. McDonald (1984) 37 Cal.3d 351, 367, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.)
"Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) The admissibility of expert opinion testimony that embraces the ultimate issue "`"depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . ."'" (People v. Killebrew (2002) 103 Cal.App.4th 644, 652.)
We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) "It is fundamental that a trial judge has wide discretion to admit or reject opinion evidence, and that a court of appeal has no power to interfere with the ruling unless there is an obvious and pronounced abuse of discretion . . . ." (People v. Clark (1970) 6 Cal.App.3d 658, 664.)
Defendant makes almost no argument as to why the admission of Investigator Piccini's opinions was error. He does not contest that Investigator Piccini qualified as an expert. Investigator Piccini had worked on sex crimes involving minors for nine years. She had specifically worked for the SPIDER team for three years. She had been involved in over 50 cases and had training on Internet crimes against children. She clearly was qualified to give expert testimony.
Moreover, we do not agree with defendant's characterization of Investigator Piccini's statement that defendant had committed a crime as an improper statement of her opinion of guilt. Obviously, the reason that Investigator Piccini executed the search warrant and arrested defendant was because she believed he committed a crime. This was not an improper comment on defendant's guilt.
Additionally, the opinion, in response to the People's hypothetical, that a man who is engaged in explicit sexual conversations with a minor was grooming the minor because he intended to engage in sexual activity with her was proper opinion testimony. Certainly, the concept of grooming was a subject beyond the common experience of the jury. Although it involved the ultimate issue to be resolved by the jury, this evidence was relevant to show that defendant intended to engage in sexual activity with Stephanie. Investigator Piccini did not express an opinion on the ultimate guilt of defendant, and the trial court did not abuse its discretion by admitting the testimony.
Even if the trial court erred, any admission of evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris (1998) 60 Cal.App.4th 727, 741.) The jury was admonished regarding the use of the expert opinion testimony and that it was up to them to establish if the opinion was accurate or true. Finally, the chat logs and photographs were overwhelming evidence of the crimes for which defendant was convicted even without the expert testimony.
Defendant contends that during closing argument the prosecutor committed misconduct by referring to the videos beyond just their titles, arguing that they depicted underage minors, and stating that she did not want the jury to view them.
Throughout opening argument, the People never discussed the videos found on defendant's computer. At the end of defense counsel's closing argument, he referenced the Evidence Code section 1101, subdivision (b) evidence. Defense counsel stated, "First of all, there is no evidence of the actual content of these three titles. You just heard titles." He admitted that there was a lot of adult pornography on defendant's computer but stated there was no evidence to establish that this was child pornography. Defendant was not charged with child pornography. Further, the ratio of adult pornography to child pornography was 100 to 3. Finally, even after viewing these titles, defendant did not meet up with Stephanie.
In rebuttal, the prosecutor argued, "Now, defense counsel brought up yesterday that if that was child pornography, that the People would have brought it in; that we would have been able to watch that video. Well, ladies and gentlemen, first off, he is telling you not to do your job. Your job is to not speculate as to why something did or did not come in. We don't know why it didn't come in. It could have been that he couldn't pull it off the computer. It could have been that the judge didn't think it was relevant. It could have been that I didn't want you to sit through watching a video called Two 13-year-old Girls Getting Come on Their Face. [¶] We don't know the reason. And that's not your job to speculate. Your job is to look at the evidence that has been presented and determine whether or not a crime happened. But you can use the fact that these titles were found on the defendant's computer to establish his intent for committing the crimes that he is being charged with."
As both defendant and the People acknowledge, defendant did not object below to the alleged incidents of prosecutorial misconduct; thus, he has forfeited those claims. A defendant must object to prosecutorial misconduct to preserve the claim on appeal. (People v. Martinez (2010) 47 Cal.4th 911, 956.) Nonetheless, in the interest of judicial economy and to forestall defendant's ineffective assistance of counsel claim, we will address the merits of his claim.
A prosecutor's conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) "To constitute a violation of the federal Constitution, prosecutorial misconduct must `"so infect[] the trial with unfairness as to make the resulting conviction a denial of due process."' [Citations.]" (Ibid.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.)
Here, when viewed in its entirety, the prosecutor's comments were not misconduct. Defendant alluded in his argument to the fact that the jury was not shown the videos because they did not depict underage girls, since he was not charged with possession of child pornography. In response, the prosecutor admonished the jury not to speculate as to why the videos were not shown. Although the prosecutor should not have told the jury it might have been her decision to spare them from the graphic images, the context of the argument does not show that defendant's right to a fair trial was prejudiced. Moreover, even without the argument, the chat logs and disturbing photograph of defendant's erect penis were overwhelming evidence of his guilt.
Defendant contends the cumulative effect of errors was prejudicial. Since we conclude no errors occurred at trial, there can be no cumulative error.
The judgment is affirmed.
HOLLENHORST, Acting P.J. and CODRINGTON, J., concurs.
