*1 Filed 10/21/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D074992
Plaintiff and Respondent,
v. (Super. Ct. No. SCD263466) LUKE NOEL WILSON,
Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed.
Charles M. Sevilla, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
After the trial court denied his pretrial motion to suppress evidence obtained without a warrant, a jury convicted Luke Noel Wilson of one count of oral copulation of a child 10 years or younger (Pen. Code, § 288.7, *2 subd. (b))1 and three counts of committing a lewd act upon a child (§ 288, subd. (a)), further finding true the allegations that two counts were committed against more than one victim. (§ 667.61, subds. (b), (c), and (e).) The court sentenced Wilson to an indeterminate prison term of 45 years to life.
Wilson appeals, contending (1) the trial court erred in denying his
motion to suppress; (2) the evidence was insufficient to support his
convictions under section 288, subdivision (a); (3) he was denied his due
process right to notice of the nature of the charges against him; (4) the
prosecution knowingly introduced false evidence at trial; (5) the prosecution
failed to produce exculpatory evidence before trial in violation of
Brady v.
Maryland
(1963)
FACTUAL BACKGROUND
For purposes of this section, we state the evidence in the light most
favorable to the judgment. (See
People v. Osband
(1996)
Using a website where women posted photos with the hopes of finding modeling and acting jobs, Wilson contacted an 18-year-old woman and hired 1 All further statutory references are to the Penal Code unless otherwise specified.
her to pose for a photo shoot. The woman was fully clothed in the initial photo shoot, but over time Wilson persuaded her to first pose partially nude and, eventually, fully nude in hotel rooms after plying her with alcohol and paying her to pose.
The woman later introduced Wilson to her younger sister, J.A., who was only 15 years old at the time. Wilson paid the two sisters to pose, fully clothed, for photographs together in Balboa Park.
At the Balboa Park photo shoot, Wilson asked J.A. for her phone number and began contacting her separately from her sister. J.A. later agreed to another photo shoot, this time in a hotel room in lingerie. Thereafter, Wilson continued to send her “proposals” via e -mail, text message, or a texting “app” for photo shoots, detailing how much he would pay her to pose in certain ways. Over time, but while she was still a minor, Wilson progressed to paying J.A. to pose for nude and sexually explicit photos. Providing J.A. with alcohol to get her “more settled and calm,” Wilson eventually paid J.A. to let him film her while he performed sexual acts and while she used sex toys on herself or allowed him to use the same toys on her body. These “photo shoots” occurred when J.A. was 15 or 16 years old. After the photo shoots, Wilson sent the photos to J.A., who testified that she liked the way she looked in the photos. By the time J.A. was 16 or 17 years old, Wilson was paying her to have sexual intercourse with him while he filmed the encounter. Occasionally, during photo shoots, Wilson would show J.A. child pornography.
When J.A. was 17, she became pregnant with her boyfriend (not Wilson). She gave birth to her daughter in late 2013, after she turned 18 and shortly after her high school graduation.
J.A. continued to do photo shoots with Wilson while she was pregnant. The photo shoots with Wilson, including nude photo shoots and filming during sexual acts, also continued after J.A. gave birth to her daughter. Around the same time, J.A. lost her job and was no longer working. She continued to accept payments from Wilson to perform in photo shoots, explaining that she cоuld make the same amount of money in exchange for one photo shoot that she would earn working for two weeks at her previous part-time job.
Wilson later paid J.A. to send him a video of her having sex with her boyfriend. Over time, Wilson progressed to suggesting a proposal of paying J.A. to take photos of her touching her infant daughter. When her daughter was about nine months old, J.A. accepted a proposal from Wilson to pay her to take a photo with her hand on her daughter’s buttocks and send it to him. Thereafter, Wilson offered to pay J.A. to send him photos or videos showing her orally copulating her daughter. J.A. again accepted the proposal and sent Wilson a minute-long video.
Wilson was also aware that J.A. often babysat her young cousin. Wilson began making offers to J.A. for her to touch her cousin in exchange for several hundred dollars. When the girl was about five years old, J.A. agreed to do so, sending Wilson photos of her touching her cousin’s bare buttocks.
J.A. admitted to knowing at the time that what she was doing was wrong. Despite this knowledge, she continued to communicate regularly with Wilson without expressing any opposition. She admitted she never contacted the police, even after Wilson escalated to asking J.A. to perform and film sexual acts on minors. Instead of objecting, J.A. reacted with enthusiasm, responding to his proposals with e-mails full of exclamation points and frequently used the slang “lol,” meaning “laugh [ing] out loud,” in response to *5 his extreme proposals. When Wilson asked her to perform oral copulation on two other minor girls, J.A. responded that she would do it and suggested, “Let’s do [it] ASAP lol.” Later, Wilson sent her photographs of a y oung girl that he wanted J.A. to perform with, to which J.A. responded “ Lol aw she’s soo small and cute lol.” 2
Several months later, J.A. declined Wilson’s offers for additional photos of the young girls, claiming she felt guilty and was no longer comfortable with the idea. However, J.A. continued to communicate with Wilson up to the date of her arrest and participated in solo photo shoots for him.
In August 2015, J.A. was contacted by federal law enforcement and initially denied knowing Wilson or participating in his photo shoots. When confronted with the photos of her daughter, J.A. admitted the truth and began cooperating.
J.A. was initially charged with multiple offenses, but accepted a plea agreement wherein she pleaded guilty to four counts of felony child abuse (§ 273a, subd. (a)) and was sentenced to 10 years of probation.
As detailed ante , part of Wilson’s course of conduct included offering to pay for photographs depicting lewd acts with minors, receiving the resulting photographs, and then distributing those photographs. Wilson used his “ Gmail ” e-mail account, hosted by Google, to communicate with the women. The Google Terms of Service specify that users may only use the Google 2 The record suggests J.A. never completed these acts involving girls other than her daughter and her cousin despite her willingness to do so. *6 services as “ permitted by law. ” 3 Google informs users that it “ may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don ’ t assume that we do. ”
Google, on its own initiative, took steps to ensure its systems were free of illegal content, particularly child sexual abuse material. Since 2008, Google has used a screening process utilizing a proprietary “ hashing ” technology to identify apparent child sexual abuse images on its services. Trained Google employees use software to generate a “ hash ” value for any image file they find depicting child pornography. The hash value is generated by a computer algorithm and consists of a short alphanumeric sequence that is considered unique to the computer file.4 ( Power of the Hash , , 119 Harv. L.Rev.F. at p. 39.) The resulting hash values are then added to a repository. The repоsitory therefore contains hash values, not the actual child pornography images.
When a user uploads new content to its services, Google automatically scans and generates hash values for the uploaded files and compares those hash values to all known hash values in the repository. If Google ’ s system 3 In support of the People’s opposition to the motion to suppress, a Google employee submitted a declaration with the Google Terms of Service attached as an exhibit. The record contains no indication of whether Wilson reviewed these terms or was otherwise aware of their content. We resolve this case without addressing the terms of service.
4 By way of example, the hash value for a file produced by Google in this case is “ 73500566f447032d5137a91e931204eb. ” Such a hash value is unique to the file, but cannot be “ ‘ reversed ’ ” to generate the contents of the file itself. (Salgado, Fourth Amendment Search and the Power of the Hash (2005) 119 Harv. L.Rev.F. 38, 40 (hereinafter Power of the Hash .) *7 detects a match between a hash value for uploaded content and a hash value in the repository for a file which was previously identified as containing apparent child pornography, the system generates a report to be sent to the National Center for Missing and Exploited Children (NCMEC) in the form of a “ Cybertip. ” 5 In some cases, Google sends the report without opening the image file, while in other cases a Google employee opens the image for manual review to confirm it contains apparent child pornography.
In June 2015, Google ’ s system identified four image files, each with hash values matching values for apparent child pornography images in its repository, attached to an e-mail created by the Gmail account later identified as belonging to Wilson.6 Google generated a Cybertip report to NCMEC identifying and forwarding the four image attachments. The report included only the four image files, not the e-mail body text or any other information specific to the e-mail. Google classified the images, using a common categorization matrix, as “ A1, ” indicating they depicted prepubescent minors engaged in sex acts. The report reflected that a Google employee did not manually review the files after they were flagged using Google’s hashing technology, and before sending them to NCMEC.
5 Under federal law, NCMEC is statutorily obligated to serve as a
national clearinghouse and maintain a tip line for internet service providers
to report suspected child sexual exploitation violations. (See, e.g.,
United
States v. Ackerman
(10th Cir. 2016)
6 Although Google explains that its search is entirely voluntary and serves its own non-governmental interests, it has a duty under federal law to report apparent child pornography to the NCMEC once it obtains actual knowledge of such content. (18 U.S.C. § 2258A, subd. (a).)
When it received the report from Google, NCMEC did not open or view the image files, but forwarded the report to the San Diego Internet Crimes Against Children (ICAC) task force after it determined the internet address associated with the Gmail account was in San Diego. The ICAC task force is an office comprised of individuals from multiple agencies, including the federal Department of Homeland Security and local law enforcement. When ICAC received the report, an administrative assistant with the San Diego Police Department printed the report with the attached electronic images, and provided them to two ICAC investigators. Those investigators viewed the images and determined the images warranted an investigation. An ICAC sergeant conducted his own review and agreed with that recommendation.
Using the information contained in the report and based on his review of the images, an ICAC investigator obtained a search warrant to obtain from Google all content and user information associated with the identified Gmail address. The investigator ’ s affidavit establishing probable cause for the warrant was premised entirely on the investigator ’ s viewing of the images and did not discuss Google’s proprietary hash value technology, the underlying hash value match performed by Google, or even a general overview of this type of computerized matching system.
The warrant resulted in the discovery of Wilson’s e-mails offering to pay J.A. to molest and exploit children. The investigator also reviewed e-mails in which Wilson distributed apparent child pornography to others.
Using the information received from Google and from Wilson ’ s internet service provider to identify Wilson, the investigator then obtained a search warrant for Wilson ’ s apartment and vehicle, and to seize computer equipment, storage devices, and other effects. While executing the search warrant, a participating officer observed a backpack fall from Wilson ’ s *9 balcony. The officer retrieved the backpack, which held Wilson ’ s checkbook and a thumb drive containing thousands of images of child pornography. Additional images were found on devices in Wilson ’ s apartment.
Using information gleaned from Wilson ’ s e-mails produced in response to the search warrant, the investigator was able to identify and locate the woman (J.A.) Wilson paid to perform the sex acts and send him some of the photographs. The investigator obtained additional warrants to search her residence and online accounts, leading to additional evidence used in Wilson ’ s prosecution.
PROCEDURAL HISTORY
Before trial, Wilson filed a motion to suppress evidence pursuant to section 1538.5. Wilson argued the warrantless “ search ” of the e-mail attachments was illegal, requiring the suppression of those images and all evidence obtained indirectly from the initial warrantless search, including all of his e-mails, the e-mails of the woman who sent him the images, and the evidence recovered from his home.
At the hearing on the suppression motion, both parties stipulated tо the admission as evidence of a declaration by a Google employee explaining Google ’ s hashing and reporting process, that any testimony she would have offered would be the same as the contents of her declaration, and to the admission into evidence of the Google Terms of Service attached to her declaration. The parties also stipulated that Wilson had a subjective expectation of privacy in his e-mail account.
William Thompson, the ICAC investigator who reviewed Wilson ’ s e-mail attachments and sought the search warrants, testified about his investigation. Thompson acknowledged that neither Google nor NCMEC *10 opened the image files attached to the e-mail. Thompson did not obtain a warrant before viewing the attachments.
Thompson also explained that in early 2017, ICAC changed its process relating to Cybertips with file attachments when the electronic service provider indicates it did not open the image files. Now, rather than immediately printing out the images and viewing them, the attached files are locked and ICAC first obtains a search warrant to view the attachments.
A computer forensic agent working for the Department of Homeland Security testified about the hashing process. He opined that it would be “ almost inconceivable ” for two files to have the same hash value if the files were not exactly the same. Using an example of one commonly-used hash value algorithm, he explained the odds of matching hash values for different files would be “ something like 340 billion, billion, billion, billion to one. ”
The court denied the motion to suppress. As the court explained, “ it appears that the crux of the motion is that the visual inspection of the images that were flagged by Google ’ s proprietary hashing technology and whether or not it expanded beyond Google ’ s private search and therefore would require a warrant of searching. ” The court found that Wilson had no reasonable expectation of privacy in the use of an e-mail account with Google for “ misconduct or unlawful conduct. ” The court explained that “ bottom line when these kind of internet tools are used[,] [t]he tools have to be used in a lawful manner. And the terms of service alerts the users that Google may investigate this conduct or suspecting this conduct. ”
The court also found that no search under the Fourth Amendment occurred because law enforcement simply repeated the private search performed by Google. Acknowledging no employee at Google opened the file to look at the photos, the court found the opening of the photos was not a *11 significant expansion of Google ’ s private search because “ Google had previously confirmed that each of the four images in defendant ’ s e-mail was child pornography. Special Agent Thompson already knew before visually examining the images, the court can reasonably infer from the A1 classification, that each of the four images depicted a prepubescent minor engaged in [a] sex act. ” Thus, the court concluded that the investigator was certain that he would not learn anything by opening the attachment that “ had not previously been learned during the private search, ” such that opening the attachments and viewing the images did not constitute a search.
After the preliminary hearing, the district attorney filed an information charging appellant with four offenses. Count One, alleging a violation of section 288.7, subdivision (b) for the oral copulation of a child of 10 years old or younger, was premised on Wilson paying J.A. to orally copulate her daughter. Count Two alleged a violation of section 288, subdivision (a) for the lewd and lascivious touching of a minor arising from the same incident as Count One. Counts Three and Four also alleged violations of section 288, subdivision (a), and were premised on J.A. ’s touching of her daughter’s and cousin’s buttocks on separate occasions. Counts Two, Threе, and Four also alleged that Wilson committed the acts against more than one victim within the meaning of section 667.61, subdivisions (b), (c), and (e).
Following trial, the jury found Wilson guilty of all counts and found true the enhancement allegations pursuant to section 667.61, subdivisions (b), (c), and (e) as to two counts. The court denied Wilson’s motion for new trial and sentenced Wilson to an indeterminate prison term of 45 years to life.
DISCUSSION
I Motion to Suppress: Private Search Doctrine
A. Standard of Review
“ ‘ In reviewing a trial court ’ s ruling on a motion to suppress evidence,
we defer to that court ’ s factual findings, express or implied, if they are
supported by substantial evidence. [Citation.] We exercise our independent
judgment in determining whether, on the facts presented, the search or
seizure was reasonable under the Fourth Amendment. ’ ” (
Robey v. Superior
Court
(2013)
Here, the underlying facts surrounding the search were not in dispute. Thus, we exercise our independent judgment in answering whether the search was permissible under the Fourth Amendment.
B. Governing Law
“ ‘The Fourth Amendment proscribes all unreasonable searches and
seizures, and it is a cardinal principle that “searches conducted outside the
judicial process, without prior approval by judge or magistrate, are
per se
unreasonable under the Fourth Amendment — subject only to a few
specifically established and well- delineated exceptions.” ’ ” (
Robey
, ,
But the Fourth Amendment does not apply to private searches.
(
Burdeau v. McDowell
(1921)
The parameters of this private search doctrine — relied upon by the
Attorney General here — were discussed by the United States Supreme Court
in
Jacobsen
. In that case, FedEx employees opened a package which had
been damaged in transit. (
Jacobsen
, ,
The defendant challenged the agents’ opening of the package and
testing of the powder as a warrantless search in violation of his Fourth
7
“Although the Fourth Amendment does not apply to a search or
seizure, even an arbitrary one, effected by a private party on his own
initiative, the Amendment protects against such intrusions if the private
par ty acted as an instrument or agent of the Government.” (
Skinner v. Ry.
Labor Execs. Ass’n
(1989)
Applying these principles, the Court held that the government’s
actions — in examining and then later testing the white powder — did not
violate the Fourth Amendment. Since the agent’s “removal of the plastic
bags from the tube and the agent’s visual inspection of their contents enabled
the agent to learn nothing that had not previously been learned during the
private search,” the Court held it “infringed no legitimate expectation of
privacy and hence was not a ‘search’ within the meaning of the Fourth
Amendment.” (
Jacobsen
, ,
Similarly, with respect to the field test, the Court held that testing the
substance did not violate the Fourth Amendment because a “chemical test
that merely discloses whether or not a particular substance is cocainе does
not compromise any legitimate interest in privacy,” and therefore does not
constitute a search. (
Jacobsen
,
supra
,
C.
Application of the Private Search Doctrine
Wilson contends the private search doctrine does not apply here and,
even if it does, the government “far exceeded the scope of Google’s automated
8 The Court compared the government’s field testing to the government’s
canine sniff of luggage in
United States v. Place
(1983)
hash match.” Applying the principles set forth in Jacobsen , we reject Wilson’s claim s and conclude the government’s actions did not violate the Fourth Amendment.
We begin by examining Google’s actions. To summarize, Google has a team of employees who are trained on how to recognize child pornography and, since 200 8, Google has used a computerized “hashing technology” to assist in this process. At least one Google employee reviews an offending child pornography image before it is assigned a unique hash value, or a “digital fingerprint,” that is then stored in Google’s repository of hash values. Google then scans all user content uploaded to its services and compares the content to the repository of hash values to identify any duplicate images of apparent child pornography as defined under 18 U.S.C. section 2256. Other users can also flag suspicious content and bring it to Google’s attention, but “[n]o hash is added to [Google’s] repository without the corresponding image first having been visually confirmed by a Google employee to be apparent child pornography.” W hen this process yields a match in hash values — i.e., the hash value of a user’s content matches a hash value corresponding with child pornography viewed by Google and stored in its repository — Google prepares a report to send to NCMEC. In some cases, a Google employee manually looks at the user content. In other cases, Google reports the user to NCMEC without again viewing the image whose hash value matches a hash value in its repository.
In this case, Wilson uploaded four offending images (photographs) using Google’s services. Utilizing its scanning process and specifically its “hashing technology,” Google determined that the content constituted child pornography and classified the content as “A1,” indicating “that the content contained a depiction of p repubescent minor engaged in a sexual act.” Google *17 submitted a report, along with the four photographs, to NCMEC. It did not include “any email body text or header information associated with the reported content.” As in other cases where a Google emplo yee has already reviewed an offending image in the past, in this case a Google employee did not re- review Wilson’s photographs concurrently to submitting the report to NCMEC. Google also did not review the content of the e-mail message to which the images were attached. Around the same time that it submitted the report to NCMEC, Google terminated Wilson’s account.
All of Google’s actions— including scanning user content, assigning hash values to that content, comparing user content to a repository of hash values, flagging offending images with hash values that match previously- reviewed child pornography images, and sending the apparent child pornography to NCMEC — сonstitute private action that was not performed at the direction of the government.9 The Fou rth Amendment’s protection “is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the [g]overnment or with the participation or knowledge of any governmental official.’ ” ( Jacobsen , , 466 U.S. at pp. 113-114.) As such, no violation of the Fourth Amendment occurred as a result of Google’s private actions.
The government’s subsequent actions— consisting of opening the electronic files submitted to it by NCMEC and viewing the four images attached to Google’s Cyber tip — did not exactly replicate Google’s private actions. Applying Jacobsen , we therefore consider the degree to which the agent’s additional invasions of Wilson’s privacy exceeded the scope of Google’s 9 Google was not aware of any investigation involving Wilson prior to submitting its report to NCMEC. As previously indicated, Wilson does not contend that Google or NCMEC were acting as governmental agents in this case.
private search. (
Jacobsen
,
supra
,
The agent in this case did not violate the Fourth Amendment when he opened and viewed the four photographs, just as the government did not violate the Fourth Amendment when it examined and later tested the white powder in Jacobsen . The DEA agent’s removal of the plastic bags and his visual inspection of their contents in Jacobsen enabled him to “learn nothing that had not previously been learned during the private search.” ( Jacobsen , , 466 U.S. at p. 120.) Based on the FedEx employees’ testimony, it was virtually certain that the package contained nothing else of significance that the agents had not already learned from the private employees. The 10 We assume without deciding that Wilson had a legitimate expectation of privacy in the computer images at issue under the Fourth Amendment. We do not need to address the question of whether Google’s terms of service negated any reasonable expectation of privacy.
government was merely confirming the FedEx employees’ account regarding the suspected contents of the package. ( Id . at p. 119.) Similarly, in this case, opening and viewing the four photographs merely enabled the government to confirm what Google had already conveyed through the Cybertip it generated after using its hashing technology — that the four images were suspected of constituting child pornography. The government did not further infringe on Wilson’s privacy, but rather guarded against the risk that Google’s report was wrong. ( Ibid .)
We acknowledge this case differs from
Jacobsen
insofar as the
technology and procedures that were used by the parties. Unlike
Jacobsen
,
where the FedEx employees visually observed and handed over the same
white substance that was later tested by the government, in this case a
Google employee did not contemporaneously view Wilson’s four photographs
before sending them to NCMEC. But we conclude
Jacobsen
still applies
despite these differences resulting from the use of Google’s hashing
technology. A Google employee
did review
identical user content — which
matched each of Wilson’s four images— although this review occurred at some
point in the past rather than contemporaneously with the Cybertip report. A
“digital fingerprint” was assigned to each of th e four images, meaning that
Wilson’s four images were identical to those in Google’s repository of hash
values, and no hash values are stored in Google’s repository unless at least
one Google employee has viewed the content and confirmed it constitutes
*20
apparent child pornography.11 Google did not turn over anything else other
than the discrete set of four matching images attached to the Cybertip report;
it did not include any larger “files” from which the images were extracted (if
any) and it did not include any e-mail body text or header information
associated with any of Wilson’s files. (Cf.
Ackerman
, , 831 F.3d at
pp. 1305-1306 [government agent expanded AOL ’ s private party search
because, in addition to opening the attachment that had been flagged as
having a matching hash value, it also opened an e-mail and three other
attachments that AOL had not opened or processed through its hash value
system].) The government was merely reviewing what Google had already
found, but in a different format — visually reviewing the photographs with the
agent’s human eyes versus replicating the computer’s generation of a
numerical algorithm. Because the assigned numerical value s, or “digital
fingerprints,” are representative of the contents depicted in the photographs
themselves, the government gained no new material information by viewing
11 Google explains that a comparison of these “digital fingerprints” allows
it “to identify
duplicate
images of apparent child pornography to prevent
them from continuing to circulate on [its] products.” (Italics added.) Other
courts and commentators similarly describe hash matching as a highly
accurate technology. (See, e.g.,
United States v. Reddick
(5th Cir. 2018)
the images. The agent merely confirmed Google’s report that Wilson uploaded content constituting apparent child pornography.12
In sum, the government’s warrantless search of Wilson’s four images was permissible under the private search doctrine. Google’s private search frustrated Wilson’s expectation of privacy in the files before they were viewed by the government. Google had already identified Wilson’s files as having matching hash values to images that had previously been viewed and identified by a Google employee as apparent child pornography. The government’s subsequent opening and viewing of the four photographs did not significantly expand on the search that had previously been conducted by Google. The agent’s actions in opening the files and viewing the images merely confirmed that the flagged files were child pornography, as reflected in Google’s Cybertip report.
D. Defendant’s Arguments Regarding the Private Search Doc trine Wilson’s arguments against application of the private search doctrine are not persuasive. We address these arguments in turn.
12 As previously noted, Jacobsen also separately discussed the government’s field test— concluding the testing of the white substance did not constitute a search within the meaning of the Fourth Amendment.
( Jacobsen , , 466 U.S. at pp. 122-123.) Because the same cannot be said fo r the agent’s actions in opening and viewing Wilson’s digital images (i.e., these actions do constitute a search), this part of the Jacobsen decision does not directly apply here. To the extent it does apply, the Court’s reasoning further supports our con clusion that the government did not violate Wilson’s Fourth Amendment rights. Just as the chemical test could reveal whether the substance was cocaine, and no other arguably private fact, the agent’s visual observations here merely confirmed the presence or absence of suspected child pornography. The fact that the confirmation occurred through the use of the agent’s own eyes in this case, versus the chemical testing in Jacobsen , does not make the private search doctrine inapplicable.
Wilson contends the private search doctrine does not apply at all
because Google’s use of its hashing technology does not “qualify as a private
search under the Fourth Amendment.” Wilson reasons that only humans can
frustrate one another’s reasonable expectations of privacy and, because
Google’s hashing process is automated and no human looked at Wilson’s
e-mail attachments until the agents did, no private search occurred at all and
Wilson’s privacy interests remained intact. We reject Wilson’s narrow view of
the process employed by Google here. Wilson’s assertion that “[n]o human
looked at [his] email attachments until th e agents did,” and his related claim
that Google employed a “machine scan with no human involvement,” does not
accurately account for the multi-step process used by Google here. A
computer program was used, but it did not occur without “human
involvement” or “human participation.” As already discussed, Google trains
employees who are responsible for identifying child pornography on its
systems. No image is assigned a hash value and added to Google’s repository
of hash values associated with apparent child pornography unless an
employee first looks at the actual image and confirms its contents. If
someone uploads content that is scanned and determined to have a matching
hash value, a Google employee then takes that flagged image and submits it
to NCMEC in the form of a Cybertip. In addition to flagging the file as
suspected child pornography based on its matching hash value, Google
classifies the file’s contents based on the initial employee review of an
identical duplicate image. In some cases, a Google employee looks at the
duplicate image before sending it to NCMEC. But in other cases, as here, a
Google employee does not perform this redundant step. In either case,
Google’s actions in reviewing, scanning, and flagging user content— and
assigning hash values to users’ files— are properly viewed in their entirety as
*23
equivalent to a private search which frustrated any reasonable expectation of
privacy in the subject files. (See
Reddick
, ,
Citing
Riley v. California
(2014)
Wilson further contends the agent here significantly expanded on Google’s search. Wilson relies on the United States Supreme Court’s decision in Walter , and contends Jacobsen is inapposite. We disagree. In Walter , a private party mistakenly received a shipment containing several individual boxes of films with labels on the outside indicating the films contained obscene content. ( Walter , , 447 U.S. at pp. 651- 652 [explaining “one side of [the examined boxes contained] suggestive drawings, and on the other side were explicit descriptions of the contents”] .) After one of the employees unsuccessfully attempt ed to view the films’ contents, the private party contacted the Federal Bureau of Investigation (FBI) to retrieve the shipment. ( Id . at p. 652.) The FBI agents viewed the films with a projector without obtaining a warrant. ( Ibid .) In a plurality opinion, the Court held that the government’s search violated the Fourth Amendment, explaining that “[t]he projection of the films was a significant expansion of the search that had been cоnducted previously by a private party.” ( Id . at pp. 657-658.)
Wilson c ontends Google’s use of its hashing technology “was not
materially different than reading the descriptive material on [the] film boxes ” in
Walter
. This case is distinguishable. In
Walter
, prior to the FBI’s
screening of the films, the agents “ could only draw inferences about what was
on the films ” based solely on the labels. (
Walter
, ,
Wilson also attempts to distinguish
Jacobsen
by pointing out that
Google may have prev iously identified the subject images incorrectly: “a
hash match involves origination subjectivity and does not provide a ‘virtual
certainty’ that the suspect file is necessarily an image that has been
previously correctly identified as child pornography.” We are not persuaded
by Wilson’s attempt to distinguish
Jacobsen
on these grounds. There is no
evidence in the record that Google’s initial identification of apparent child
*26
pornography, and the associated hash value calculation, was erroneous.
Even if some level of subjectivity is involved when a Google employee
identifies suspеcted child pornography, that does not mean the private search
doctrine does not apply. The Court in
Jacobsen
made clear that the DEA
agents could rely on the testimony of the FedEx employees, and that they
could also confirm the employees’ conclusions based on their private
observations —and thereby guard against any errors or “flaw[s] in the
employees’ recollection”— by viewing the contents of the container
themselves. (
Jacobsen
, ,
Wilson also cites United States v. Keith (D.Mass. 2013) 980 F.Supp.2d 33, which dealt with a similar hash matching process and concluded that NCMEC, acting as a government agent, expanded on a private search by opening and viewing electronic files forwarded to it by a private internet service provider. ( Id . at pp. 41, 43.) The court concluded Jacobsen was inapposite because, in that case, “ the subsequent DEA search provided no more information than had already been exposed by the initial FedEx search.” ( Id . at p. 43.) By contrast, the court reasoned that more information can be obtained from viewing a file’s contents: “That is surely why a CyberTipline analyst opens the file to view it, because the actual viewing of the contents provides information additional to the information provided by the hash match.” ( Ibid .) But examining an item more closely and learning some additional details is not incompatible with applying the private search doctrine; the question is “the degree to which [the additional intrusions] exceede d the scope of the private search.” ( Jacobsen , , 466 U.S. at p. 115.) Moreover, the fact that the agent learned more from his review of the pictures compared to his review of the numerical algorithm is not dispositive because the proper question is whether this additional knowledge exceeded the scope of the private party’s search. As we have already em ployees’ visual observations of the contents of the container and the white substance. Google’s extensive hash matching process provides even more information than those visual observations and inferences drawn from how the white substance was packaged.
discussed, the private party in this case
did
know all of the same details
based on the prior visual review of the identical imagеs by a Google employee
and the government’s search did not exceed the private search . (See
Reddick
,
, 900 F.3d at pp. 638-639 [a detective did not expand the scope of
Microsoft’s private search; applying
Jacobsen
, the court concluded that
“opening the file merely confirme d that the flagged file was indeed child
pornography, as suspected” after Microsoft scanned the defendant’s files and
determined the image file’s hash value was identical to the hash value of
known child pornography];
United States v. Miller
(E.D. Ky. 2017) 2017 WL
2705963, at *7 [“Google’s hash -value matching . . . does not reveal anything
about an image that Google does not already know from the regular eyes of
its employees. Put another way, hashing is not a futuristic substitute for a
private search — it is merely a sophisticated way of confirming that Google
already conducted a private search.”].) 15 In addition, in
Keith
and unlike
here, it was not clear
who
performed the initial private search. The court
noted it was “possible that the hash value of a suspect file was initially
generated by another provider and then shared with AOL.” (
Keith
, at p. 37,
15 Although the government could learn some details previously unknown
to it, there is no likelihood that the government would learn something else of
significance under the Fourth Amendment — i.e., a private fact in which a
reasonable expectation of privacy remains — when it viewed the four images
of child pornography following Google’s extensive, multi -step hashing process.
(Cf.
United States v. Lichtenberger
(6th Cir. 2015)
fn. 2; see also id . at p. 43 [ “the provenance of that designation [of the original file as child pornography] is unknown”].) By contrast, “[n]o hash is added to [Google’s] repository without the corresponding image first having been visually confirmed by a Google employee to be apparent child pornography.”
Finally, Wilson contends he can establish a violation of his Fourth
Amendment rights based on a trespass theory, irrespective of whether his
privacy interests were invaded. The government violates the Fourth
Amendment by either infringing on a defendant’s constitutionally protected
expectation of privacy (
Katz v. United States
(1967)
II.
Sufficiency of the Evidence: Section 288(a)
Wilson contends the evidence does not support the jury’s verdict finding him guilty of Counts Two, Three, and Four, for which he was charged with aiding and abetting, or conspiring to commit, J.A. ’s lewd and lascivious acts on her daughter and cousin in violation of section 288, subdivision (a) because J.A. did not harbor the requisite sexual intent. We disagree.
“Our task is clear. ‘On appeal we review the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence — that is, evidence that is reasonable, credible, and of solid value —
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (
People v. Cravens
(2012)
“In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even te stimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal
*31
for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whate ver is there sufficient substantial evidence to support” ’ the
jury’s verdict.” (
People v. Zamudio
(2008)
Both parties agree that for the jury to convict Wilson of committing lewd and lascivious acts on a child under the age of 14 on the theory that he aided or abetted, or conspired with, J.A. when she committed those acts, the jury was required to find that J.A., as the principal perpetrator, touched the children “with the intent of arousing, appealing to, or gratifying the lust, pas sions, or sexual desires of [herself] or the child.” (§ 288, subd. (a).) This element is the only element which Wilson contends was not supported by sufficient evidence.
For purposes of this appeal, Wilson does not contend that J.A. did not touch the chi ldren, but only that the evidence did not support the jury’s conclusion that she did so with the requisite intent. Wilson argues J.A. did not lust after her infant daughter and young cousin and touch them with the aim of satisfying her own sexual desires, but rather that the evidence established that she touched the children only because Wilson paid her to do so and she was desperate for money.
“Regarding a specific intent element of a crime, [our Supreme Court
has] explained that ‘[e]vidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as sufficient as
direct evidence to support a conviction.’ [Citation.] Moreover, the standard
of review that applies to insufficient evidence claims involving circumstantial
evidence is the same as the standard of review that applies to claims
involving direct evidence. ‘We “must accept logical inferences that the jury
might have drawn from the circumstantial evidence. [Citation.]” [Citation.]
“Although it is the jury’s duty to acquit a defendant if it finds the
*32
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant’s gu ilt beyond a reasonable
doubt. [Citation.]” [Citation.] Where the circumstances reasonably justify
the trier of fact’s findings, a reviewing court’s conclusion the circumstances
might also reasonably be reconciled with a contrary finding does not warrant
the judgment’s reversal.’ ” (
People v. Manibusan
(2013)
To sustain a conviction under section 288, subdivision (a), the
prosecution must present evidence regarding the intent of the person
touching the minor. “As the vast majority o f courts have long recognized, the
only way to determine whether a particular touching is permitted or
prohibited is by reference to the actor’s intent as inferred from all the
circumstances.” (
People v. Martinez
(1995)
With these principles in mind, we conclude the evidence supports Wilson’s conviction on the theory that J.A. harbored the requisite sexual intent when she touched the girls. Viewed in the light most favorable to the prosecution, the evidence shows that J.A. touched the girls, including orally copulating her daughter, to satisfy her lust, passion, and sexual desire directed toward young girls. As she admitted, there was no medical reason for touching the girls. She also admitted she knew that what she was doing was “wrong” and that she “sinned” when she touched the girls, reasonably supporting the inference that she understood her feelings toward the girls were lewd and lascivious. During the time period in which she was touching the girls, she never objected to Wilson’s sexualized comments regarding young girls and even participated in watching child pornography with Wilson. J.A. did not reject Wilson’s proposals. And she did not merely accept Wilson’s proposal to perform oral copulation on two young girls; she responded by laughing and asking to “do [it] ASAP.” When Wilson showed her photos of a young girl that he wanted her to sexually abuse, J.A. did not react with disgust, but instead expressed she found the girl to be “soo small and cute lоl.” Th is evidence , viewed in the light most favorable to the jury’s verdict, supports the conclusion that J.A. touched the girls to obtain her own immediate sexual gratification.
Additionally, as the prosecution argued in opposition to Wilson’s pretrial motion to set aside the information, the evidence established that J.A. participated in “ ‘ non-mainstream ’ ” sexual a ctivities, supporting an inference that she would also participate in “ ‘ non-mainstream ’ ” child molestation.
On appeal, Wilson points to J.A. ’s own statements that she had no
sexual intent when she touched the girls. He also points to other evidence in
*34
the record suggesting she had no sexual interest in young girls because the
incidents giving rise to the offenses here were isolated incidents tied to her
need for money and she never lewdly touched any other minors. However, it
is not this court’s role on appeal to reweigh the evidence, resolve conflicts in
the evidence, or make our own credibility determinations. (See, e.g.,
People v.
Ochoa
(1993)
III.
Wilson’s Due Process Right to Notice of the Nature of the Charges Wilson contends his due process right to notice of the charges against him was violated when J.A. changed her testimony after the preliminary hearing regarding the timing and contents of the photos she sent to Wilson and which formed the basis for the charges against him. He asserts that J.A. ’s changing testimony between the preliminary hearing and trial deprived him of adequate notice of the charges against him.
A. Additional Background
At the preliminary hearing, J.A. testified that she believed the videos of her touching her daughter’s buttocks and orally copulating her daughter were filmed and sent to Wilson on July 17, 2014. J.A. additionally testified that she could not remember when she took the photo of her cousin and sent it to Wilson, but that it occurred before the incidents involving videos of her dаughter.
The information filed after the preliminary hearing alleged that all acts underlying the offenses occurred “between January 1, 2014 and August 20, 2015.”
At trial, J.A. changed her testimony to now reflect her understanding that the girl in the July 17, 2014 video was her cousin, not her daughter. She admitted that she met with the prosecution immediately before trial and realized that the girl in the July video was not wearing a diaper, meaning it could not be her infant daughter. She further testified that the videos depicting her daughter were filmed and sent to Wilson in December 2014. Concerned with this change in testimony and the apparent lack of evidence to support the change, Wilson moved for a mistrial. The trial court denied the motion.
B. Analysis
In
Jones
,
supra
,
When a case is initiated with the filing of an information, the defendant
is afforded “ ‘ practical notice of the criminal acts against which he must
defend ’ ” primarily by way of the preliminary hearing transcript. (
Jones
,
, 51 Cal.3d at p. 317.) A defendant’s right to notice does not encompass
*36
“notice of the
specific
time or place of an offense, so long as it occurred within
the applicable limitation period.” (
Ibid
., italics added.) “ ‘[A]t a minimum, a
defendant must be prepared to defend against all offenses of the kind alleged
in the information as are shown by evidence at the preliminary hearing to
have occurred within the timeframe pleaded in the information.’ ” (
Ibid
.,
quoting
People v. Gordon
(1985)
Here, the information alleged that all offenses occurred between January 1, 2014, and August 20, 2015. The information also specifically alleged that Wilson, through J.A., committed the specific acts of (1) orally copulating J.A. ’s daughter and lewdly touching her vagina; (2) touching her buttocks; and (3) touching the buttocks of J.A. ’s cousin. Although J.A. repeatedly stated she could not recall specific dates, the evidence at the preliminary hearing and at trial was consistent with the dates in the information and consistent with the acts described in the information and at trial against the same victims.
Wilson compares this case to People v. Ochoa (2016) 2 Cal.App.5th 1227, in which the appellate court held that when the information alleged defendant committed the offenses against one victim, the prosecution could not seek his conviction at trial based on evidence that the offense was instead committed against a different victim. ( Id . at pp. 1231-1232.) Doing so, the court reasoned, would violate the defendant’s due process right to notice of the charges against him. ( Id . at p. 1232.)
Here, unlike
Ochoa
, the allegations in the information and the
testimony at the preliminary hearing were consistent with the evidence at
trial regarding the identity of Wilson’s victims and the offenses committed
against them. At most, J.A. ’s testimony differed on the specific dates on
which the offenses were committed, but those dates remained within the time
*37
period alleged in the information. Variances between the preliminary
hearing testimony and trial testimony regarding the time at which specific
acts occurred are not material and do not deprive a defendant of adequate
notice. (
People v. Calhoun
(2019)
IV.
False Evidence Wilson argues that the prosecution knowingly adduced false testimony at trial to support its framing of the case. He contends that the prosecution argued to the jury that Wilson “groomed” the sisters by starting with innocuous photo shoots and slowly progressing to asking them to perform sexual acts. Wilson asserts this framing was only possible because of the fаlse testimony by J.A. and her sister regarding their first photo shoot together.
As Wilson asserts, J.A. testified she never participated in a photo shoot in lingerie with her sister, who in turn testified that she did participate in such a photo shoot with J.A., but it occurred at least a year after the initial, fully-clothed photo shoot with both sisters. In his motion for a new trial, Wilson presented evidence that the sisters posed in lingerie the same day as their initial photo shoot and soon thereafter posed several times in increasingly risqué photo shoots.
16 Shortly before oral argument, Wilson submitted a notice of new
authority pursuant to rule 8.254 of the California Rules of Court. In his
notice, Wilson suggests that the recent decision in
People v. Hughes
(2020)
The trial court denied the motion for new trial, finding that the evidence suggested the sister merely could not remember details, that the evidence to the contrary was available to Wilson before trial, and that any error was harmless because such evidence was not material.
As the Attorney General acknowledges on appeal, “[a] criminal
judgment obtained through use of false evidence violates due process,
whether the prosecution solicits the false evidence or simply allows it to go
uncorrected when it appears.” (
Campbell v. Superior Court
(2008)
Wilson, however, offers nothing more than speculation that the sisters knowingly committed perjury or that the prosecution knew their testimony was false. As both sisters frequently testified, they admittedly could not remember the exact sequence of the numerous photo shoots that had taken place years earlier and hаd actively tried to forget what they had done with Wilson. The plain impression of their testimony suggests that given the sheer multitude of photo shoots, the sisters could not remember some of the specific events and their timing, not that they were intentionally offering false testimony. Given this topic was not a central element of the offenses, the record likewise does not establish the prosecution knowingly adduced this testimony or failed to correct it despite its knowledge of its falsity.
Moreover, even assuming some error, Wilson does not establish he was
prejudiced. A conviction premised on false evidence is reversible only when
the defendant shows that if such evidence were
not
introduced, it is
reasonably probable that the jury would have reached a different result.
(See, e.g.,
In re Roberts
(2003)
Wilson does not meet his burden. Given the overwhelming evidence at tri al regarding Wilson’s treatment of the sisters, any discrepancy in the precise sequence of their earlier photo shoots was immaterial and it is not reasonably probable that if the jury was aware of the true sequence of photo shoots, it would have concluded that Wilson did not aid and abet the touching of the young girls. On appeal, Wilson contends that J.A. ’s false testimony regarding the early photo shoots was part of her effort to rehabilitate her own image and “lay blame on [Wilson] for the molests of he r daughter and [cousin].” However, even accepting this framing, J.A. failed to rehabilitate her image regardless of her testimony regarding the early photo shoots. As discussed ante , the jury did not believe J.A. ’s testimony regarding her own sexual desires for her daughter and cousin and suggestion that she was merely Wilson’s unwitting pawn. In light of the jury’s disregard for other portions of J.A. ’s testimony aimed at evading responsibility, it is unlikely that more information regarding her participation in the early risqué photo shoots would have led to a different result as to Wilson. Accordingly, there is no basis for reversal in this regard.
V.
Brady Error
In an argument related to his claim regarding false evidence, Wilson
contends the prosеcution failed to disclose photos in its possession depicting
the early “sexually charged photo shoots” with both sisters, which could have
been used at trial to impeach their testimony that no such photo shoot
occurred. Wilson contends this failure to disclose the photos stored on hard
drives seized from him violated the prosecution’s duties under
Brady
,
supra
,
Wilson raised this claim at trial after the sisters completed their testimony. He asked the court to order the prosecution to turn over any photos in its possession depicting either of the sisters. The prosecutor informed the court that he had offered to provide those photos to Wilson’s counsel months before trial, but defense counsel declined. Wilson’s counsel admitted that he decline d the offer, but told the court that given the sister’s unexpected testimony he thought the photos were now relevant. The court accepted the prosecution’s consent to providing the photos as soon as possible. However, at the end of the last day of testimony at trial, the prosecution informed the court that it learned it would take at least a week to obtain the photos given the complex standards for copying and producing such sensitive files. Defense counsel suggested he needed to review the files before the trial concluded to preserve Wilson’s rights to a fair trial, but the court denied the request. The court noted that any deprivation in this regard was the fault of defense counsel, who declined the prosecution’s offer to disclose the material over a month before trial. Wilson later raised the same issue in his motion for new trial, which the trial court likewise denied. The trial court explained that this photographic evidence “was not exculpatory evidence, at best it impeached [the sisters] on a mino r point.” Finding the evidence had been offered to Wilson before trial, the court ultimately concluded that Wilson was not prejudiced because “ [i]t is not reasonably probable that the result would have been different had the evidence been disclosed.”
We agree with the trial court. Under
Brady
, the prosecution has the
obligation to disclose to the defense all material exculpatory evidence.
(
Brady
, ,
On appeal, we review a claim of
Brady
error de novo “but give great
weight to any trial court findings of fact that are supported by substantial
evidence.” (
People v. Letner and Tobin
(2010)
Here, Wilson fails to establish that the evidence was suppressed by the government. Before trial, the prosecution offered the photos to Wilson’s counsel, but he declined to review them. Moreover, even assuming the prosecution had some duty to produce the photos despite defense counsel’s disinterest, Wilson fails to demonstrate the requisite prejudice because the photos were not material. As discussed ante regarding the same evidence, the minor issue regarding the sequence of the early photo shoots was not a central element of the prosecution’s case, even if we focus, as Wilson requests, on the “grooming theory” of Wilson’s liability. If Wilson obtained the photos to use as impeachment evidence at trial, he would have merely shown that the sisters had imperfect recollection of their past interactions with Wilson. Regardless of the sequence of events not directly related to the charged offenses, it is not reasonably probable that the jury would have reached a different result if it heard impeachment evidence on this issue. Thus, we conclude there was no Brady error requiring reversal.
Wilson alternatively argues that his counsel’s failure to obtain thе
photos before trial constitutes ineffective assistance of counsel. Like the
*42
standard for
Brady
error, an appellant asserting his counsel was ineffective
must show a deficient performance
and
that absent the alleged
ineffectiveness, there is a reasonable probability of a more favorable result.
(
People v. Waidla
(2000)
VI.
Instructional Error Wilson raises four claims regarding jury instructions. He contends the court erred in failing to give two additional instructions regarding unanimity and conspiracy, a set of instructions was unduly prejudicial, and the court’s response to a jury question misconstrued the law.
A. Unanimity Instruction
Wilson alleges the trial court had a duty to provide a unanimity instruction to the jury. We disagree.
Wilson contends that J.A. ’s testimony presented multiple instances that could separately support the charged offenses because she testified she touched the girls on multiple occasions. According to Wilson, in light of the possibility that the jurors relied on separate instances to support their verdict, the court erred in not instructing the jury that it must unanimously agree on the same specific act as supporting its verdict as to each offense.
The Attorney General does not dispute that the jury’s verdict must be
unanimous, but contends no unanimity instruction was required here.17 A
criminal defendant has a constitutional right to a unanimous jury. (See, e.g.,
People v. Russo
(2001)
As Wilson notes, the jury heard evidence tending to show the
commission of more than one act that could support some of the charged
offenses. This, however, does not necessarily mean a unanimity instruction
was required. As the
Brown
court explained, the presentation of evidence
showing the commission of more than one act supporting a charged offense
creates the requirement of either a unanimity instruction
or
the
“ ‘ prosecution must elect the specific act relied upon to prove the charge to the
jury. ’ ” (
Brown
, ,
instruction. [Citation.] [¶] Under these principles, there is an implicit presumption that the jury will rely on the prosecution’s election and, indeed, is bound by it.” ( Ibid .)
Here, the prosecution made such an election in closing argument. The prosecution expressly claimed that the first two counts were premised on J.A. ’s oral copulation of her daughter in December. Similarly, the prosecution argued that Counts Three and Four were premised on the specific acts of touching the two girls in the incidents where J.A. sent the photographs and videos to Wilson. Although J.A. suggested she touched her cousin on a different occasion, the prosecution expressly did not seek to establish Wilson’s guilt on an inc ident in which there was no photograph or video shown at trial. By making such an election, the prosecution negated the need for a unanimity instruction. ( Brown , , 11 Cal.App.5th at p. 341.) Thus, Wilson’s claim to the contrary has no merit.
B. Conspiracy Instructions
Wilson asserts the trial court had a sua sponte duty to give a jury
instruction clarifying that Wilson was not responsible for J.A. ’s acts befоre he
joined the alleged conspiracy. As Wilson notes, “[a] conspirator cannot be
held liable for a substantive offense committed pursuant to the conspiracy if
the offense was committed
before
he joined the conspiracy.” (
People v. Marks
(1988)
“A trial court’s duty to instruct, sua sponte, on particular de fenses
arises ‘ “only if it appears that the defendant is relying on such a defense, or
if there is substantial evidence supportive of such a defense and the defense
is not inconsistent with the defendant’s theory of the case.” ’ ” (
People v.
Maury
(2003)
Wilson contends on appeal that his central defense falls under this instruction and there was “substantial evidence the charged acts occurred before [Wilson] joined any conspiracy or aided and abetted the charged crimes.” This conte ntion on appeal, however, is belied by the evidence at trial.
As Wilson did not testify at trial and offered no affirmative evidence in defense, his opening brief on appeal relies primarily on his counsel’s closing argument to claim there was evidence he did not join the conspiracy until after J.A. committed the acts. As the jury was instructed, however, the arguments of counsel are not evidence.
At most, Wilson points to an e-mail introduced at trial in which he told another woman that J.A. sent him a video with her daughter as a surprise and “ ‘I didn’t even ask for it.’ ” This evidence, however, does not support his contention on appeal that he joined the conspiracy with J.A. after she performed her criminal act. Rathеr, it supports his central defense that there was no conspiracy at any time.
Wilson’s chief defense at trial was that the prosecution failed to show that he solicited the photos and videos such that there was no conspiracy or aiding and abetting. Following his statement to the other woman in the e-mail, he asserted J.A. sent him the photos and videos on her own initiative *46 and her evidence to the contrary was not unequivocally supported by the record of their communications.
In accordance with this defense, the jury was properly instructed on the elements of conspiracy, including, inter alia, the requirement that Wilson agreed with J.A. to commit the offenses. In contrast to his defense that he never joined the conspiracy, no evidence at trial suggested Wilson did join the conspiracy, but only did so after J.A. had already committed any acts underlying the charged offenses. Thus, an additional instruction was not warranted in this regard.
Regardless, we conclude that even if the trial court had a sua sponte
duty to instruct the jury with CALCRIM No. 419, and even if that error
constituted misinstruction on the elements of an offense, the error was
harmless beyond a reasonable doubt. (
Chapman v. California
(1967)
C. Instructions Regarding Evidence of Other Crimes At trial, the prosecution presented evidence regarding uncharged criminal offenses. The prosecution relied on this evidence of similar yet uncharged crimes to prove Wilson’s propensity to commit the charged offenses. (See, e.g., Evid. Code, § 1108; People v. Villatoro (2012) 54 Cal.4th 1152, 1159- 1166.) The court instructed the jury that “The People presented evidence that the defendant” committed these uncharged offenses, which if *47 proven by a preponderance of the evidence, could be considered “for the limited purpose of decidi ng whether the defendant acted” with the requisite intent for the charged offenses.
The court repeated the phrase, “The people presented evidence that the defendant” committed criminal offenses, multiple times in succession. As Wilson concedes on appeal, he did not object to these instructions. However, asserting the issue is not forfeited, he contends that the repetition of the phrasing that the prosecution “presented evidence that the defendant” committed offenses improperly signaled to the jury that the court was giving an opinion that the evidence established that Wilson did indeed commit the referenced offenses.
We reject Wilson’s claim of alleged prejudice. Standard jury instructions regarding the use of uncharged offenses to establish intent include the introductory phrase that Wilson challenges here. (See, e.g., CALCRIM Nos. 375, 852A, 852B, 1191A, 2840.) An instruction simply stating that the prosecution “presented evidence” that the defendant committed a crime is not synonymous with stating the evidence is credible or that the defendant did indeed commit the crime. The given jury instructions properly informed the jury of its role in evaluating whether the evidence was sufficient to establish Wilson’s guilt. The jury was properly instructed that it had the duty to decide “what the facts are,” that Wilson is presumed to be innocent, and that the prosecution must prove Wilson’s guilt beyond a reasonable doubt. Considering the totality of the instructions, we conclude that the instructions did not mislead the jury or otherwise suggest to the jury that the court had determined Wilson was guilty. (See, e.g., People v. Reliford (2003) 29 Cal.4th 1007, 1013 [“ [W]e must view a challenged portion ‘in the context of the instructions as a whole and the trial record’ to *48 determine ‘ “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that viоlates the Constitution.’ ”].)
D. Response to Jury Question Regarding J.A. ’s Sexual Intent Wilson contends the court erred in answering a jury question regarding the element of J.A. ’s intent for the section 288, subdivision (a) offenses. The jury was correctly instructed that the People had to prove that J.A. “committed the act with the intent of arousing, appealin g to, or gratifying the lust, passions, or sexual desires of herself or the child.”
As discussed ante , J.A. testified that she touched the children only because she needed money. After it began deliberations, the jury sent a question to the court, askin g whether the “lust” and “passion” referred to in the jury instruction could be “financial, or other types of ‘lust, passion.’ ” After consulting with the parties’ counsel, the court replied that “[t]he specific intent required for Counts 2-4 cannot be so lely financial. ‘Lust’ refers to sexual arousal or sexual gratification of the perpetrator or child.” Wilson’s counsel argued before the trial court that stating the intent cannot be “ solely financial” (italics added) may be confusing, but the court explained that the intent of the first sentence was to “make[] it clear that there could be multiple intents going on.”
On appeal, Wilson contends the court’s answer misconstrued the law
and altered the intent requirement for section 288. We disagree. “Whe n
reviewing ambiguous instructions, we inquire whether the jury was
‘reasonably likely’ to have construed them in a manner that violates the
defendant’s rights.” (
People v. Rogers
(2006)
The court’s reply clearly indicated to the jur y that it must find J.A. acted with sexual intent. Simply stating that J.A. could have acted for *49 multiple reasons, both sexual and financial, did not alter the requisite finding of sexual intent. Wilson provides no authority to suggest that a perpetrator must commit a section 288, subdivision (a) offense with a singular, sexual intent. Nothing in the evidence suggests that sexual intent and financial intent are mutually exclusive, or that any financial intent affected J.A. ’s sexual intent. The jury was not reasonably likely to have construed the court’s reply as negating its duty to make the required finding of sexual intent. We reject Wilson’s claim of error.
VII.
Prosecutorial Misconduct
Wilson asserts his due process rights were infringed due to several prosecutorial errors that rendered the trial inherently unfair. He contends the prosecutor (1) falsely claimed in his opening statement that text messages sent by Wilson to J.A. existed but those text messages were not introduced into evidence at trial; (2) met with J.A. immediately before trial to “script [] ” her testimony to fit the documentary evidence; (3) used inflammatory language by calling Wilson a “special type of child molester” during his opening statement; and (4) improperly vouched for J.A. ’s credibility. He also contends the court erred in not correcting these errors, regardless of whether Wilson’s counsel objected at the time.
As Wilson concedes on appeal, his counsel did not object to any of these allegedly improper acts by the prosecution.18 Setting aside any issues of forfeiture, we conclude there was no prejudicial error by the prosecutor and, by extension, the trial court. Most importantly, even assuming each act complained of by Wilson was wrongful, Wilson fails to establish that the 18 Wilson argues the issues were not forfeited, but also contends that to the extent an objection was necessary, his counsel was ineffective for failing to object.
alleged errors warrant reversal. Wilson must establish that “there is at least
a reasonable probability that a more lenient verdict would have been
returned in the absence of the errors.” (See, e.g.,
People v. Vance
(2010)
Wilson fails to meet this standard. Even if we consider the claims of misconduct cumulatively, they are not sufficient to have deprived Wilson of a fair trial. The evidence of his guilt was so overwhelming that it is not reasonably probable the jury would have reached a different verdict in the absence of the alleged prosecutorial acts.
VIII.
Cruel and Unusual Punishment
Wilson asserts his indeterminate term of life imprisonment constitutes
cruel and unusual punishment in violation of both the California and United
States Constitution “under the facts and circumstances of this case and for
this offender.” (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
“Whether a punishment is cruel and/or unusual is a question of law subject to
our independent review, but underlying disputed facts must be viewed in the
light most favorable to the judgment.” (
People v. Palafox
(2014)
Wilson does not dispute that the trial court’s imposed sentence was mandatory under the relevant statutes given his conviction of oral copulation under section 288.7, subdivision (b), and the jury’s true fi ndings under *51 section 667.61, subdivision (b). (§ 667.61, subds. (b), (c)(7), (c)(8), (e)(4) [establishing mandatory sentence of 15 years to life for any person convicted of multiple enumerated sexual offenses against more than one victim].) He also does not appear to challenge the sentencing scheme facially. Instead, he focuses on the imposed sentence as applied to him.
Although the mandatory nature of his sentence does not end our
inquiry, we grant the Legislature great deference. “[T]he determination of
whether a legislatively prescribed punishment is constitutionally excessive is
not a duty which the courts eagerly assume or lightly discharge. Here, as in
other contexts, ‘ “mere doubt does not afford sufficient reason for a judicial
declaration of invalidity. Statutes must be upheld unless their
unconstitutionality clearly, positively and unmistakably appears.” ’ ” (
In re
Lynch
(1972)
The Eighth Amendment of the United States Constitution forbids only
sentences that are “grossly disproportionate” to the crime. (
Ewing v.
California
(2003)
“
Lynch
describes three ‘techniques’ to determine whether a sentence is
so disproportionate to the crime as to constitute cruel or unusual
*52
punishment. [Citation.] We first consider ‘the nature of the offense and/or
the offender, with particular regard to the degree of danger both present to
society.’ [Citation.] Next, we compare the sentence to ‘punishments
prescribed in the
same jurisdiction
for
different offenses
which, by the same
test, must be deemed more serious.’ [Citation.] Finally, we compare the
sentence ‘wit h the punishments prescribed for the
same offense
in
other
jurisdictions
having an identical or similar constitutional provision.’
[Citation.] The weight afforded to each prong may vary by case. [Citation.]
‘Disproportionality need not be established in all three areas.’ ” (
People v.
Baker
(2018)
On appeal, Wilson does not present an argument regarding each of these techniques, but rather focuses on what he characterizes as his minimal culpability as a non-perpetrator. As Wilson argues, he “was not present when [J.A.] committed the molest acts, did not force her to commit them, and was not aware she was committing the acts when she did them.”
Wilson’s argument ignores that under California law, a direct aider and
abettor with the requisite mental state is equally guilty of committing the
intended crime as the direct perpetrator. (§ 31.) “ ‘[W]hen an accomplice
chooses to become a part of the criminal activity of another, [he] says in
essence, “your acts are my acts,” and forfeits [his] personal identity. We
euphemistically may impute the actions of the perpetrator to the accomplice
by “agency” doctrine; in reality, we demand that [he] who chooses to aid in a
crime forfeits [his] right to be treated as an individual. ’ ” (
People v.
Prettyman
(1996)
In
People v. Gonzales
(2001)
We apply the same analysis her e. Wilson’s role as an aider and abettor does not negate his significant participation in the offenses. Although he did not directly molest the girls, Wilson was the central figure leading to their sexual abuse. The evidence at trial established that he sent proposals to J.A. to take advantage of her trusted role as a mother and caretaker to reach young children that were beyond Wilson’s own reach. By taking advantage of J.A. ’s desperate financial need and leading her into increasingly sexually explicit acts, Wilson enabled the molestation of these young, vulnerable children. Although the jury found J.A. harbored her own sexual desires, there is a strong likelihood that without Wilson’s instigation and offer of payment, the abuse would have never occurred. Thus, rather than being an unwitting minor assistant, Wilson was the central figure in the offenses.
We also reject Wilson’s suggestion that unlike other sexual offenses
against older children, the harm to the victims here was minimal because
there is no evidence the girls “were even aware the conduct occurred or
suffered any type of psychological or physical trauma.” California courts
have long recognized “a strong public policy to protect children of tender
years.” (
People v. Olsen
(1984) 36 Cal.3d 638, 646.) “Along a spectrum
ranging from murder, mayhem, and torture on one end to petty theft on the
other, ‘lewd conduct on a child may not be the most grave of all offenses, but
*54
its seriousness is considerable.’ ” (
Baker
,
supra
, 20 Cal.App.5th at pp. 724-
725.) Rather than decreasing his culpability, the vulnerability of the girls
given their young age is an aggravating circumstance. (
Id
. at p. 725.)
Similarly, Wilson’s culpability is heightened by aiding J.A. to abuse her
trusted position as a mother and caregiver to assault the children by
invidiously abusing thе trust the girls placed in her. (See, e.g.,
People v.
Gomez
(2018)
Wilson also relies on his criminal-free history, college education, and
general good standing in society to suggest the punishment is
disproportionate when applied to him. “Although these factors are favorable
to him, they do not outweigh the other factors.” (
Baker
, ,
Finally, Wilson contends that the prosecution’s plea deal with J.A.,
which resulted in her not serving any prison time despite her role as the
direct perpetrator, demonstrates how disproportionate his sentence is to his
culpability. To support this contention, Wilson relies on the Supreme Court’s
decision in
Dillon
, in which the court relied on the discrepancy between the
defendant’s life sentence and the sentences of his aiders and abettors, none of
whom were sentenced to any prison time. (
Dillon
,
supra
,
Wilson, however, ignores that while the
Dillon
court compared the
defendant’s sentence to some of his aiders and abettors, it declined to
compare the defendant’s sente nce to the one aider and abettor who was
granted immunity “for giving evidence against all the others.” (
Dillon
, ,
Beyond his challenge to his sentence as a non-perpetrator as compared
to the sentence for J.A. and reliance on his personal history, Wilson makes no
effort on appeal to challenge his sentence as being disproportionate as
compared to the sentences for other more serious crimes or sentences
imposed for similar sentences in other states. By failing to make a challenge
to his sentence under those techniques for applying the constitutional
analysis in his opening brief, we deem the issues forfeited. (See, e.g.,
People
v. Duff
(2014)
IX.
Cumulative Error
Wilson contends that even if the alleged errors standing alone did not
deny him a fair trial, the cumulative effect of these errors unfairly denied
him his due process rights. His claim of cumulative error must demonstrate
that absent the errors, there is a reasonable probability the jury would have
reached a more favorable result. (
People v. Holt
(1984)
DISPOSITION
The judgment is affirmed.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.