California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. FVA1000035 Dwight W. Moore, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
A jury convicted defendant, Clark Alexander Mahoney, Jr., of possessing child pornography or child erotica. (Pen. Code, § 311.11, subd. (a).) He was granted probation and appeals, claiming there was insufficient evidence that the crime occurred within the statute of limitations, there was insufficient evidence to support the verdict, section 311.11, subdivision (a) is void for vagueness and the trial court erroneously failed to give the jury a unanimity instruction. We reject his contentions and affirm, while directing the trial court to correct errors in the minutes of the sentencing hearing that the parties agree need to be corrected.
On January 4, 2010, defendant lived alone at his home, where he kept, inter alia, the four computers discussed below. By way of stipulation, the parties agreed to the chain of custody of those computers from the time of their seizure from defendant’s house to the time they were analyzed by the prosecution and defense experts.
The prosecution expert testified that Internet Explorer automatically logs into Internet history every web page the computer user goes to, and saves into temporary Internet files the images on every web page the user views, including the graphics that make up the banners on web pages. If a computer user is not savvy, he or she may be unaware that the images from every web page viewed are saved.
On one of the computers removed from defendant’s home on January 4, 2010, a Compaq brand computer (Compaq), the prosecution expert found 12 thumbnail size computer generated images of children having sex with adults. The images had been saved to a folder on the hard drive on October 19, 2009 and December 7, 2009, and, subsequently, the folder had been deleted. The prosecution’s expert could not determine whether any of the 12 images had been viewed or how they had been deleted. The fact that these images had the same creation,  modification and last access date suggests that they appeared on the screen while the computer user was viewing a website, but the prosecution expert could not say that the computer user opened any images beyond viewing them within Internet Explorer. The images had been saved to temporary Internet files. The fact that the December 7 creation time was within four minutes of the last access time suggested that they were consistent with advertisements on a web page. The evidence relating to these images was not admitted to prove the charged offense, but as evidence of defendant’s intent or mental state as to it. Also on the Compaq were 188 thumbnail images of girls in bikinis or panties with their legs spread, with the focal point of the images being their genitals or buttocks, nine of which were shown to the jury. The images had been saved by the Compaq’s operating system to temporary Internet space on the hard drive by the computer user visiting the website on which the images appeared on October 19 and December 7, 2009, and on January 3, 2010, then the images had been deleted. The standard user name of “Compaq_administrator” was associated with these images. A web page for that user name was for defendant. The images would have come across the computer’s monitor, but it could not be determined whether anyone had actually viewed them. They were in temporary Internet space, in deleted folders, meaning the images had to have been displayed on a web page and the computer user had to have visited that web page. Also on the Compaq was a web banner graphic for a child pornography image named, “Real Preteen” that had eventually been deleted. A banner graphic is saved to the hard drive when the computer user goes to the website where the graphic appears. It had been in a temporary Internet file, meaning the image had to have been displayed on a web page and the computer user had to have visited that web page. The same user name as previously mentioned was associated with this graphic as were the above-mentioned dates. Also on the Compaq were three images of females under the age of 18 years, two of whom were engaging in sex acts with adults and the other of whom was naked, on a bed, with her legs apart. Those images had also been deleted. The above mentioned user name was associated with them, as were the above-mentioned dates. They were in temporary Internet files, meaning the images had to have been displayed on a web page and the computer user had to have visited that web page. On the Compaq there were also 200 more images of girls in underwear and bikinis similar to those described above, which were in unallocated clusters, meaning they had been deleted, therefore, it could not be determined when they were created or deleted. Also on the Compaq were Google Internet searches for web pages associated with child model sites and child erotica-type content, with which the above-mentioned user name was associated and “the user profile identified [defendant] as having the email address associated with [this user name].” They were in unallocated space. The Compaq also contained indicia of a peer-to-peer sharing network that had been used on the computer and a movie file with a title consistent with child pornography content that had been partially downloaded, suggesting that the computer user had either cancelled the download, or deleted it after it had been completed. The text in the network program included, inter alia, the words, “masturbation, orgasm, panties, ... vagina, porn, kiddie, incest, preteen [and] fuck.” The prosecution expert opined that the images found on the Compaq’s hard drive had been displayed on its monitor.
On a Hewlett Packard brand laptop (HP) computer taken from defendant’s home on December 4, 2010, were 64 thumbnail size images of child porn or child erotica—nine of them, which depicted young or preteen girls in various states of undress, most wearing bikinis or panties, which could be viewed by the computer user on the screen, were shown to the jury. Because they were in unallocated space, meaning they had been deleted, it could not be determined when they were created or deleted. The 64 images had been saved to the hard drive before being deleted. The images could be consistent with an advertising page or the opening page from a model’s website showing the content of that website. The prosecution’s expert was not able to say that these images were displayed on the HP’s monitor, because they were in unallocated clusters, however, they were consistent with the images he found on the Compaq’s hard drive, which he opined had been on its monitor, and with the images he found on the Apple brand computer’s (Apple) hard drive (discussed below), some of which had been enlarged by the computer user. The HP laptop also contained web banner graphics of four very small images that had been spliced together to make one large, long image of preteen girls in various states of undress. A banner graphic is saved to a hard drive when a computer user goes to the website that contains the graphic. In the opinion of the prosecution’s expert, the girls in all of the above-mentioned images were under the age of 18. The images could have been saved by the computer user or automatically saved by the operating system, the latter when the computer user went to the website on which the images were displayed. Also on the HP laptop were deleted Google searches—the user name associated with them was Clark, which is defendant’s first name. The text that had been typed into the laptop by the computer user for these searches was “Russian ballet model, ” “hot preteen models, ” “nude preteen” and “nude preteen models.” In his opinion, the images he found on the Compaq, the HP and the Apple (discussed below) were images that would be found if a computer user entered these search terms. Google suggestions, which are suggested search terms that appear when the computer user begins typing a search term into the Google web page, are not saved to the Internet history but they are saved as a temporary file in unallocated space. Therefore, the Internet history shows only the search term actually typed by the computer user and not the Google suggestions. In the prosecution expert’s opinion, Google suggestions would not suggest a term like “nude preteen model” and if a computer user typed “nude” into a search, a suggestion of “preteen” would not be made. There were no Google suggestion for “nude preteen.” When the prosecution’s expert typed “preteen nude” into a Google search on this computer, no suggestions related to child pornography or child erotica came up. He testified that due to federal law, Google does not suggest search terms that lead to child pornography. Although he could not say that the images on the HP laptop had been displayed on its screen, they were consistent with the images that were on the Apple computer, which were viewed and which will be described below.
On the Apple computer, also taken from defendant’s home on January 4, 2010, were 268 images, which had been deleted, and of which the nine shown to the jury were representative. Because the 268 images were in unallocated clusters, meaning they had been deleted, it could not be determined when they were created or deleted. The nine images shown to the jury were of girls and boys, from infancy to early teen (all under 18), engaged in sexual acts or having their exposed genitals as the focus of the images. The images ranged in size from thumbnail to full-size large images, the latter meaning that they had been opened up, enlarged or modified by the user of the computer. Also on the Apple laptop was a web page banner for the Lolita’s Kingdom web page, deleted web pages to Lolita-type sites and child model sites for child erotica and 505 images of child erotica.
On an Acer brand mini-notebook computer, also taken from defendant’s home on January 4, 2010, were deleted web page entries showing web page names relating to child models or tiny girl pictures.
In the expert’s opinion, whether the Compaq, the HP or the Apple had a virus would be irrelevant because no virus would cause a Google search for the term “nude preteen” to be typed in as it was on the HP. Also, the images found on all three of these computers were consistent with the types of Google searches that had been done on the HP (the user name associated with those searches was Clark), and according to the prosecution’s expert, a virus would not put those images onto a computer. He had never seen a virus put child pornography onto a hard drive, including the virus, Trojan. He conceded that pop-ups, which are advertisements that appear on the computer screen, could be caused by a Trojan virus.
He described a “redirect” as occurring when a computer user is on a website and is trying to close the website, but another screen appears, directing the user to another location. At times, a computer user clicks on a page he or she thinks he or she is going to and is actually taken to another page that has different content. Typically, these pop-ups or redirects can be viewed by the computer user and the user has to be on the Internet for them to occur. In the expert’s opinion, pop-ups or redirects are irrelevant to this case because some user of the HP had to enter the terms “hot preteen models” and “nude preteen.” He had never seen a website redirect to child pornography if the computer user was not originally on a child porn site. The expert conceded that in some instances, when a computer user is on an adult pornography site, there could be a link taking the user to a site with younger people (individuals that look 18 or 19 years old, but could be 14 or 15 years old). However, he had never seen a link on an adult pornography website to a site for infants or early teenagers. There was no evidence that the images he found on the Compaq, the HP or the Apple were the result of a computer user going on an adult pornography website and getting redirected to a child pornography site. The expert opined that one of the ways the images on all three computers got there was by a computer user doing Google searches for the terms that had been typed into searches on the HP (the user name associated with these was Clark), and the searches could not have taken place without the computer user typing in the search terms. He explained that when the computer user enters a search ...