APPEAL from a judgment of the Superior Court of Sacramento County, Robert M. Twiss, Judge. Affirmed. (Super. Ct. No. 08F03772)
The opinion of the court was delivered by: Murray , J.
CERTIFIED FOR PUBLICATION
Defendant Curtis Holford, a registered sex offender, was convicted by jury of possession of child pornography (Pen. Code, § 311.11) for his possession of a video file on a hard drive found in his possession. Following a bifurcated hearing, the trial court found that defendant previously had been convicted of a strike offense within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and that he had also served two prior prison terms (id., § 667.5, subd. (b)). The trial court sentenced defendant to an aggregate term of 14 years in state prison (upper term of six years, doubled pursuant to the Three Strikes law, plus two consecutive one-year terms for the prior prison terms), and imposed other orders.
On appeal, defendant contends: (1) the trial court abused its discretion under Evidence Code section 352*fn1 and also violated his constitutional rights by allowing the jury to view the entire 25-minute video file because, as defendant now contends, there were evidentiary alternatives to showing the jury the entire video file; and (2) the trial court further violated his constitutional rights by allowing defendant's daughter to testify about his prior molestation of her.*fn2
We hold that defendant has forfeited the arguments he now makes on appeal regarding the video as he did not proffer a specific excerpt or any other specific evidentiary alternative at trial prior to the video being shown to the jury. Further, any assessment of whether the trial court abused its discretion by admitting the entire video necessarily involves a comparison of the probative value of the evidentiary alternative to the probative value of the entire video and weighing the probative value of each against the purported prejudicial effect. Because defendant failed to identify a specific excerpt or any other specific alternative before the video was shown to the jury, we cannot determine the probative value of such an excerpt or alternative. In the absence of probative value to compare and weigh against any purported prejudicial effect, we cannot find that the trial court abused its discretion. Furthermore, even if we were to consider the recently minted evidentiary alternatives defendant offers on appeal, we would not find that the trial court abused its discretion by allowing the entire video. We further hold that the admission of the entire video did not violate due process.
We also hold that admission of evidence concerning defendant's prior molestation of his daughter did not violate due process.
Child Pornography Evidence
In February 2008, officers conducted a routine parole search of defendant's residence, an apartment he shared with another individual. Defendant led the officers to his bedroom, where they found an external hard drive, one or two Alltel USB wireless cards, and a number of computer software CD's. One of the officers asked defendant if he had any pornography on the hard drive. Defendant responded: "Yes, I do." At that point, defendant was arrested for violating the terms and conditions of his parole. The officers did not specifically ask defendant whether there was child pornography on the hard drive.
A forensic analysis of the hard drive revealed the existence of child pornography, a video file saved as "Puebla Mexicana Girl" with a running time of roughly 25 minutes. The hard drive contained approximately 46,000 other files, including roughly 80 video files containing adult pornography, which were saved in folders entitled "Porn" and "Porn DVD." However, the "Puebla Mexicana Girl" file was saved within the "My Pictures" folder in a subfolder innocuously entitled "Lisa Pics," which contained only 19 files, 18 of which were nonpornographic images of an adult female.
The Puebla Mexicana Girl file had a "created date" of May 26, 2003. This date could reflect the date the file was downloaded from the Internet onto the hard drive found in defendant's possession. Defendant was incarcerated in state prison from October 2002 to February 2007, and it is undisputed that defendant could not have downloaded the file. However, if the file was transferred to the hard drive from another hard drive as part of a zip file, the created date could be the date the file was initially saved onto the first hard drive, rather than the date it was transferred to the hard drive found in defendant's possession.
The file also had a "last written date" of July 27, 2007. This date refers to the last time the file was modified in some way. By this date, defendant had been released from state prison. The file's "last access date" was January 4, 2008. This date reflects the last time the file was accessed, but not modified -- almost a year after defendant's release from prison.
The prosecution's forensic computer examiner estimated that it would take approximately five minutes to transfer the video file to an external hard drive, assuming a newer computer with a faster processor was used. If a computer with a "real slow, old" processor was used, it could have taken as long as 20 minutes.
Evidence of Prior Child Molestation
Defendant's 2002 incarceration was the result of his conviction for committing a lewd act on his 15-year-old daughter, K.H.*fn3 K.H. testified that she was sitting on her father's lap in her grandmother's garage talking about school when he placed his hand under her shirt and touched her breasts. She did not remember whether defendant touched her under or over her bra. The conversation stopped. Scared, she remained in his lap for a short period of time while he touched her. Then she got up, stood there for a second not knowing what to do, and then went into the bathroom and locked the door. Defendant followed, knocked on the bathroom door, apologized for his behavior, and then slid a note under the door containing an apology. While in the bathroom, she tried to call her mother on the house cordless phone but realized the phone was not working. After about 10 minutes she left the bathroom and walked into a nearby room. However, when defendant followed, she called out for her grandmother. Her aunt came in, after which defendant left.
Defendant sustained a conviction for a violation of Penal Code section 288, subdivision (c), lewd or lascivious acts with a person 14 or 15 by a person at least 10 years older, for the molest on his daughter. While the specific conviction was apparently not introduced into evidence at trial, K.H. testified on cross-examination that defendant went to prison after the molestation and defense counsel acknowledged in closing argument that defendant went to prison for the molestation. The parties stipulated that defendant was confined in state prison from October 21, 2002, to February 25, 2007.
Prior to trial, defendant moved to prevent the jury from viewing the entire "Puebla Mexicana Girl" video. In his written in limine motion, defendant offered to stipulate "regarding the contents of the video; such as that it contains sexual acts performed by a person that appears to be under 18 years of age." During argument on the motion, counsel for defendant offered to stipulate that "it is, in fact, child pornography." Defendant did not suggest in his written motion or during oral argument that an abridged version of the video be played as an alternative to showing the jury the entire video.
The prosecutor opposed the motion, pointing out that this was a child pornography case and that the video was the "main evidence" in the case. The prosecutor stated that it was her intention to play the entire 25-minute video. Defense counsel then asked the trial court to view the "extremely graphic" video to determine whether its probative value was substantially outweighed by the danger of undue prejudice to defendant. The prosecutor agreed that the video was extremely graphic, and with that concession, suggested it was unnecessary for the court to review the video.
After expressing concern about requiring the jury to view the video and noting that the scope of defendant's proposed stipulation was unclear, the trial court stated that the extent of the stipulation "certainly weighs in my determination as to how to proceed on the jury viewing the videotape." However, the court went on to explain that it could not "hamstring" the People's ability to prove their case by excluding the video altogether. The court further explained if it "were to disallow the videotape in its entirety, then the jury would be potentially faced with a situation of looking at a case where there's an allegation that the [d]efendant downloaded or possessed, or in some way within the meaning of the statute had a videotape including child pornography . . . . It would be fairly sanitized. It would be like, So what? People download things from their computer all the time, and we don't really care. [¶] So I think that the People are entitled to present a fair depiction of the facts surrounded [sic] in the charges to the jury. [¶] The only question I have . . . is whether that can be accomplished through a combination of a stipulation and less than 25 minutes of video." The court suggested that the solution might not necessarily have to be "an all-or-nothing resolution" and that it could restrict the amount of the video it allowed. Without ruling on the motion, the trial court asked counsel to try to reach an agreement as to whether an abridged version of the video could be played. Thus, it was the trial court, not defendant, who suggested the possibility of introducing an edited version of the video.
Later in the day, the prosecutor informed the trial court that there would be no agreement to condense the video. Again acknowledging the extremely graphic nature of the video, the prosecutor explained that she would not play the tape during opening statements or during closing argument, but rather she would only play it once -- during the presentation of the evidence. The prosecutor also explained that the case against defendant was based largely on circumstantial evidence, and that both the length and nature of the video would serve to demonstrate that defendant was aware that the video existed on the hard drive and contained child pornography. The prosecutor also contended that playing the video in its entirety would demonstrate that the video was downloaded as a single large file, rather than in smaller "sessions." The prosecutor noted that, given the nature of the video, it would be difficult to select a portion to play to the jury, and further contended that if the video was edited to a shorter segment, the jury would be "left wondering . . . what happened throughout the entire video."
The trial court acknowledged that "the main element" the People would have to prove was whether defendant knew there was child pornography stored on the hard drive. The court went on to state that the prosecution should be permitted to put on enough evidence to avoid jury nullification that might result from the jury not getting the "flavor" of the contents of the video file from a stipulation. The court also acknowledged that the prosecutor could not be forced to enter into a stipulation, but also opined that the prosecution could not stop defendant from admitting that the video contained child pornography, an element of the charged offense. Defense counsel declined to allow defendant to make any admissions, but offered to allow the court to tell the jury that the defense was not contesting that the video is child pornography. After additional discussion, the court again deferred ruling on the motion.
The next time the parties convened, the trial court ruled that the People would be allowed to play the entire video. However, the court did not review the video file before making its ruling.
The trial court explained that the video's probative value was "extraordinarily high" despite defendant's proposed stipulation that it contained child pornography. This was so because the jury would be required to determine not only whether the video contained child pornography, but also whether defendant knowingly possessed or controlled the video with the knowledge that it depicted a person under 18 years of age personally engaged in or simulating sexual conduct.
The trial court noted that defendant's stipulation did not account for all elements of the offense. Naturally, defendant did not offer to stipulate that he knew he was in possession of the video or that he knew the video contained child pornography. Accordingly, the court noted that defendant's ownership or control and knowledge of the contents were "contested issues for the jury." The court further noted, "[t]his is not a case where . . . defendant's computer contains dozens, hundreds, or thousands of images containing child pornography," but rather there was only one file on the hard drive that did.
Thus, explained the trial court, "[t]he video or at least a sample of it must come into evidence even with the proposed stipulation by . . . defendant." The court went on to explain that requiring the People to "select a segment of eight minutes or ten minutes" would make it "difficult if not impossible" for the jury to assess whether defendant knew the video contained child pornography because "[t]his isolated snippet of the video might not be sufficient to put a viewer on notice that it contained child pornography and therefore the jury might get a distorted impression of the facts in the case."
Expressly applying section 352, the trial court concluded that the probative value of the video was not substantially outweighed by the probability that its admission would require undue consumption of time, confuse the issues or mislead the jury, or create a substantial danger of undue prejudice to defendant. As the trial court explained, playing the 25-minute video would not unduly consume time in a trial estimated to last four days. Nor would the video be likely to confuse the issues or mislead the jury since the main issue in the case was whether or not defendant knew he possessed child pornography.*fn4
The trial court also explained that playing the entire video would not unduly prejudice defendant. Acknowledging that playing the video would be "upsetting to many people," the trial court explained that "[s]o much is unavoidable" in a child pornography case. The trial court continued: "While I'm concerned about presenting 25 minutes of child pornography to a jury, if this was a more typical case with many images of pornography at issue and the prosecutor were to choose only some of those instances[,] specifically, for instance, if [there] were ten videos, each of which [was] 25 minutes in length and the prosecutor chose to show the jury only one of those ten, I don't think anyone would give much thought to this issue. [¶] In this case, there is only one video. It happens to be 25 minutes, and showing one of one is no different in terms of the impact on the jury than showing one of ten or more. So while certain jurors will most likely find it distasteful to view 25 minutes of a tape some of which at least contains child pornography within the meaning of [Penal Code section 311.4, subdivision (d)], I think that is simply a cost of doing business in this case."
After the court announced its ruling, defense counsel suggested, for the first time, that an abridged version could be played to the jury instead of the entire video. Specifically, counsel stated that a "seven[-]minute" excerpt of the video would be "more than adequate to present a taste of that video." However, counsel did not ...