Filed 5/20/13 P. v. Smith CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063679
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F09905046)
                   v.

ROBERT ROY SMITH,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Leanne LeMon and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                 INTRODUCTION
         Robert Roy Smith (defendant) was charged with one count of possession or
control of child pornography with a prior. (Pen. Code, § 311.11, subd. (b).) The
information also alleged three prior serious felony “strikes.” (Pen. Code § 288, subd. (a)
[two prior convictions]; Pen. Code,1 § 288a, subd. (c)(1) [one prior conviction].)
       Defendant eventually admitted the prior conviction allegations. Following trial, a
jury convicted defendant as charged. The superior court struck one of the strikes and
sentenced defendant to a prison term of 25 years to life.
       Defendant appeals, contending that “late” disclosures by the prosecution
constituted discovery violations and infringed on his right to a fair trial. Defendant
further claims that the exclusion of testimony regarding his prior diagnosis and treatment
as a sex offender was error. We reject both contentions and affirm.
                                            FACTS
       Keri DeAlba’s Testimony
       At trial, Keri DeAlba testified that she worked as a behavioral specialist at the
Golden Gate Center (the “Center”), which is part of the Vocational Education Center at
Coalinga State Hospital. DeAlba had daily contact with the defendant, who was a patient
at the hospital.
       The Center itself is a recreation room where patients work on computers, play
pool, and use musical instruments. DeAlba‟s job duties included monitoring patients‟ use
of the computers to ensure that “everything was appropriate.” Patients were not
permitted to view images of any kind on the computers, which were solely for treatment-
related work.
       On February 26, 2009, DeAlba observed defendant using the same computer he
sat at “every day.” DeAlba saw defendant “cycling through” several pictures, including
one of an unclothed “little boy,” and another of an unclothed “little girl.” Defendant had
two “thumb drives” plugged in to the computer‟s tower. DeAlba phoned state hospital


       1   All further statutory references are to the Penal Code unless otherwise indicated.



                                               2.
officer2 Michael Bassi, who was stationed nearby in the vocational center, and told him
to come quickly. DeAlba then told defendant to give her his thumb drives. Defendant
said, “Please don‟t. Please, Keri, don‟t. Please, please don‟t.” DeAlba gave the thumb
drives to Officer Bassi. Defendant left with Officers Bassi and Palacios and said, “I‟m
busted.”
         Officer Bassi’s Testimony
         The thumb drives were then plugged into the computer of an investigator with the
police department‟s office of special investigations. One of the drives was Emprex brand
(the “Emprex drive”). The other drive was Kingston brand (the “Kingston drive”).
         On the Emprex drive, there were multiple images of young children performing
sexual acts. On the Kingston drive, Officer Bassi saw four to five nude pictures of boys
and girls. There were other files on the Kingston drive that were not child pornography.
                  Officer Bassi’s Interview With Defendant
         After leaving the investigator‟s office, Officer Bassi went to interview defendant.
Officer Bassi recorded the interview, and the recording was admitted into evidence at
trial.
         During the interview, defendant indicated that the “smaller” thumb drive
contained “probably four pictures” of “nude children” (i.e., “young girls.”) The rest of
that drive‟s contents were files related to defendant‟s treatment.3
         Defendant described “the other” drive4 as being “loaded.” Defendant described
the drive‟s contents as follows:



         2   See section 830.38.
        This was presumably a reference to defendant‟s treatment at Coalinga State
         3
Hospital.
         4   This was clearly a reference to the Emprex drive.



                                                3.
      “Well there‟s [sic] a couple of files that have nude boys which are not my interest
      but that‟s they, they [sic] just happened to be there. Uh most of them are nude
      girls uh there‟s some hard core child porn on there. In more than one file I can‟t
      tell you how many because I don‟t, I really don‟t remember.”5
      Defendant later testified at trial that all of the answers he gave in the
interview were true.
               Officer Bassi’s Testimony Regarding the Kingston Drive
      Officer Bassi also testified as to whether there was child pornography found on the
Kingston drive. His testimony in that regard included the following exchanges:

      1. “[Prosecutor:] And on the Kingston drive, did you actually see any images
         or videos on that drive?
          “A           There were images, no videos, on the Kingston drive.

          “Q        Okay. And the images that you saw, do you recall what type of
          images they were?
          “A           They were four to five nude pictures of boys and girls.

          “Q        Do you recall if any of the pictures in the Kingston drive involved
          any kind of penetration?
          “A           I don‟t think so. They were just nude. [¶] … [¶]”

      2. “[Defense counsel]: Now, these thumb drives – and I‟m going to kind of jump
         around a little bit. These thumb drives, 11(a) and 11(b), these are still, I mean,
         fully loaded with illegal child pornography, right?
          “[Prosecutor]: Objection. Calls for speculation.
          “THE COURT: Overruled. You can answer, sir.
          “THE WITNESS: They should be, yes. [¶] … [¶]”



      5  The defendant proceeds to describe the acts depicted with greater specificity.
There is no dispute that the Emprex drive contained material that constituted child
pornography under the relevant statutes. There is no dispute on appeal that the images on
the Kingston drive did not constitute child pornography. Thus, in our view, there is no
need to describe the graphic depictions in greater detail.



                                              4.
       3. “[Defense counsel:] Okay. So this one given to the phasers is smaller than the
          Emprex drive. You viewed a little bit, or small material, child pornography
          material on both of these; is that right?
           “A        That‟s correct. [¶] … [¶]”

       4. “[Defense counsel:] Officer Bassi, the Emprex drive is the lower silver one
          there, right?
           “A        That‟s correct.

           “Q       And that is the one that had most of the material, the child
           pornographic material on it, right?
           “A        Yes.

           “Q       There was also some found on the blue and white drive, that is, the
           Kingston drive that is assigned to the phasers, right?
           “A        Correct, four to five pictures. [¶] … [¶]”

       5. “[Prosecutor:] Would finding pictures of naked children on a drive cause you
          to want to look to see if there were pictures of sexual acts?
           “A        Yes.”
       The prosecutor would eventually state during closing argument that the Kingston
drive, in fact, had no child pornography on it.
       September 19, 2011, Hearings
       At a hearing outside the presence of the jury on September 19, 2011, defense
counsel indicated that the prosecutor had handed him a CD and documents labeled
attachments F-K (the “supplemental report”6) that morning at 10:39 a.m.7 The
documents were the products of analyses performed by a Detective Wiens. Defense
counsel conveyed that he was told (presumably by the prosecutor) that the documents


       6The analysis is more precisely defined as additional attachments to a preexisting
report. For convenience, we will refer to the analysis as the “supplemental report.”
       7An original report by Detective Wiens, previously provided to defense counsel,
included attachments A through E.



                                             5.
showed how many times the names “Bob, Robert, Robert Smith” appear on the Emprex
drive. He was also told that Detective Wiens would be testifying “off” the documents.
The prosecutor confirmed that she had “just” handed the information to defense counsel.
She said she turned it over “pretty much the moment I received it. If you recall, Mr.
Spence did come in and handed some documents to the bailiff, who handed them to
me.”8 She confirmed that the reports regarded searches on the Emprex drive for “Bob,
Robert Smith, Smith, things of that nature.” She also indicated that the documents also
showed what files were duplicated between the Emprex drive and the Kingston drive
using “hash values.”9 The prosecutor indicated that she had asked for the analysis on the
previous Friday “because of [defense] counsel‟s clear line of questioning going towards
the Emprex drive not being the defendant‟s. And it is clear that is where he is going.”
The prosecutor further stated that defense counsel had access to the contents of the
Emprex and Kingston drives “for over a year.”
       The court stated that it would allow each side to review the documents. Defense
counsel requested that, “[a]t the bare minimum,” the court direct that no reference be
made to the “additional discovery” until the next morning. After further discussion
between counsel and court, it was agreed that Detective Wiens would not testify later that
day as planned. Instead, he would testify the next morning.
       In a session later that day, the court and counsel again discussed the recently
disclosed documents outside the presence of the jury. Defense counsel did not move for
a continuance, but did indicate that he would not have time for an expert to look at the
material by the next morning. He stated that his client had a right to a fair trial.

       8 The trial court confirmed on the record that it observed the detective come in to
the courtroom that morning and provide the prosecutor with two manila folders.
       9 The prosecutor explained that “hash value” is an alphanumeric figure assigned to
individual computer files (e.g., documents, images). The relevance of the hash values is
that they are used to determine whether two files are exact copies of one another.



                                              6.
       The prosecutor argued that there was no new information in the supplemental
report, which was just a different way to analyze the same material referenced in
Detective Wiens‟s initial report. Defense counsel responded by analogizing the situation
to a late disclosure of a spreadsheet in a financial fraud trial:

       “We‟ve got this huge amount of data. But that is fine, I‟ve got access to all this
       data for a while. But to come up with a new summary of this data, to have new
       reports of this data this late in time, it does not give me an adequate chance to
       respond to it .…”
       The following colloquy between the court and defense counsel ensued:

              “THE COURT: Attachments F through L, which both sides received
       during the course of the testimony this morning. They were brought into the court,
       given to Ms. Clinton [prosecutor], and then in turn given to Mr. Baly [defense
       counsel]. That took place, that Mr. Baly first received them, at about 9:39 this
       morning. I have not heard anyone represent that this is anything other than an
       analysis of the search of the content of a digital copy of the thumb drives that each
       counsel received by way of the discovery. Is there any disagreement with that
       statement?

             “MR. BALY: Could you – I apologize, would you restate the statement?
       You said list, I think.

              “THE COURT: I‟ve heard no one represent that this information is
       anything other than an analysis of the search of the content of a digital copy of the
       thumb drives which is contained on the CDs that each counsel received by way of
       discovery. Is that accurate?
              “MR. BALY: I agree.…”
       The court ruled the supplemental report was admissible, and that the analysis went
to ownership of the drives, not content of the drives.10

       10  On appeal, defendant asserts that the trial court‟s characterization was incorrect.
Specifically, defendant contends: “Here the trial court ruled that the material in the
newly generated reports „did not go to the content of the drives.‟ The trial court was
incorrect. The testimony given by Detective Wiens did go to the content of the drives.”
(Italics added.) Defendant creates a straw man by inexplicably equating Detective
Wiens‟s supplemental report with his testimony at trial. The court ruled that the material
in the supplemental report did not go to the content of the drives. It did not rule that


                                               7.
       Detective Wiens’s Testimony
       Detective Wiens testified that he located approximately 1,100 images of child
pornography on the Emprex drive. Detective Wiens had seen approximately 80 percent
of the images in prior investigations. The images depicted children younger than 18
years old. Detective Wiens also found a video file approximately 47 minutes in length.
The video depicted different segments of child pornography videos that Detective Wiens
had seen in the past.
       The Emprex drive also contained approximately 10,000 text and Power Point
documents. Detective Wiens searched the properties and content portions of the files for
certain strings like “Bob” and “Robert.” Detective Wiens found 295 documents with the
name “Bob” either in the properties or body of the documents.11 By comparing the hash
values of various files, Detective Wiens determined that 6,200 of the exact same files
were found on both the Emprex and Kingston drives.
       Detective Wiens testified that there was no child pornography on the Kingston
drive.12
       Defendant’s Testimony
       Defendant testified that another patient gave him a CD or a DVD with child
pornography on it. The patient told him, “There‟s some good stuff on here you might
want to see.” Defendant understood that the CD contained “child pornographic
material.” He viewed the video contained on the CD and looked at between 1,000 to

Detective Wiens‟s testimony, which had not even been given yet, would never touch on
the contents of the drives.
       11 Detective Wiens also found 23 documents with “Robert,” 189 documents with
“Smith,” 13 documents with “Robert Smith,” 5 with the name “Bobby,” and 126
documents with “Bob Smith.”
       12Defense counsel would later indicate at closing argument that the fact the
Kingston drive had no child pornography first “crystallized” for him with Detective
Wiens‟s testimony.



                                            8.
2,000 images. He saw that the CD contained child pornography. He later transferred the
CD‟s contents to his Emprex drive. Thus, on February 26, 2009, “the files with the
pornography” were on the Emprex drive.
          Defendant was asked about what he was doing on February 26, 2009, when he was
“caught.” He testified that he was opening the images and separating them by what he
liked and what he did not like. He did not want images of boys, only young girls. The
images he wanted to keep, he transferred to the Kingston drive.
          Dr. Zinik’s Proferred Testimony
          In pre-trial briefing, the defense indicated that it intended to call Dr. Gary Zinik as
a witness to testify “to the nature of [defendant‟s] commitment at Coalinga State
Hospital, his diagnosis and the nature of the treatment program at the hospital.”
          The prosecution moved to exclude Dr. Zinik‟s testimony. The trial court granted
the motion, subject to reconsideration if “further issues” came up during trial. The court
ruled that it was not relevant why defendant possessed the child pornography, nor “where
he possessed it, what his intent was when he possessed it, what his diagnosis may have
been at the time he possessed it.”
          Dr. Zinik never testified.
          September 20, 2011, Hearing
          During trial, in a hearing outside the presence of the jury, the court considered
whether to give a CALCRIM 306 instruction (Untimely Disclosure of Evidence).
Defense counsel stated that he did not know Detective Wiens believed there was no child
pornography on the Kingston drive because it was not stated in his report. The
prosecutor argued that CALCRIM 306 should not be given absent bad faith on the part of
the prosecution. The prosecutor also argued that the issue came up at the preliminary
hearing. She cited page 75, lines 14-17 of the preliminary hearing transcript, which
states:



                                                 9.
       “[Prosecutor:]        Do you recall whether there are any photos on the Kingston
       drive that had oral, vaginal, or anal penetration?

       “[Detective Wiens:] I don‟t recall that drive having that type of material.”
       The court ruled that there was no discovery violation. As to the preliminary
hearing, the court stated: “[w]hat seems to be missing was a very direct question asked
of a witness as the preliminary hearing, or during the course of preparing for trial, when
counsel could have been made aware – and I mean both counsel, either counsel, could
have been made aware that there was nothing contained on the Kingston drive.” The
court further ruled that “the discovery which the People were to provide were the
documents themselves, any written reports of the officer, or any oral reports of the
officer. And it appears, frankly, that those oral reports were made today .…” The court
refused the CALCRIM 306 instruction. The court did agree with defense counsel that
CALCRIM 306 does not require bad faith by the prosecution.
       Sentencing Hearing
       At the sentencing hearing, counsel and the court discussed a letter written by one
of the jurors.13 The letter requests leniency for defendant during sentencing.14 The letter
included the following text:

       “The second element of the case so stated is: „When the defendant acted, he or
       she knew the character of the matter[.]‟ Mr. Smith stated in his testimony stated
       [sic] that he would review the material. What he wanted to keep he would transfer
       over to the Kingston drive. What he didn‟t wanted [sic] he deleted by clicking the
       button and it would disappear from the screen. The point is if he thinks he deleted
       the material and he in fact did not. Then at that point, he doesn‟t know the
       character of the matter and the second element goes unproven. There is in my
       opinion circumstantial evidence to prove this. Note: His issued Kingston Drive

       13  Defendant‟s appeal does not concern his sentence. However, defendant argues
that the letter from the juror has a bearing on the substantive issues raised on appeal.
       14 The letter was ostensibly written to request sentencing leniency. However, the
request is based on the juror‟s apparent regret in voting to convict as evidenced by the
quoted text.



                                            10.
       has no child porn on it. Concerning the video, we saw, Mr. [S]mith said, he saw
       it. But that doesn‟t mean that he didn‟t think he deleted it. Which in his mind
       would constitute not have [sic] knowledge of its presents [sic]. That is if I thought
       it was not there. It‟s like two tanks and Mr. [S]mith acting as filter, in his mind,
       when he sees something he like [sic], he transfers or copies it over to the other
       take [sic]. Detective Weins [sic] testified that he found duplicate objects of files
       on both drives, but no porn on one drive. To me this is good evidence that point
       [sic] to reasonable doubt.”
       The trial court acknowledged receipt of the letter, and then proceeded to
pronounce the sentence. The court exercised its discretion in striking one of the prior
serious felonies for sentencing purposes only. The court sentenced defendant to a base
term of 25 years to life.
                                        ANALYSIS
       Appellant raises two issues on appeal. 15 First, he argues that late discovery by the
prosecution “led to” 16 prejudicially inaccurate testimony regarding whether the Kingston
drive contained child pornography. Second, he claims the trial court erred by excluding
evidence of his prior diagnosis and treatment as a sex offender.

       15  The first issue raised by defendant actually expresses multiple issues. We count
at least four express claims of error in defendant‟s first issue on appeal: (1) that the court
abused its discretion in admitting Detective Wiens‟s report ; (2) erroneous testimony of
Officer Bassi at trial misled the jurors ; (3) erroneous testimony by Detective Wiens at
the preliminary hearing deprived defendant of a viable defense to the charges ; and (4)
late disclosure that the Kingston drive contained no child pornography violated due
process.
       16Defendant repeatedly states that Detective Wiens‟s supplemental report
disclosed at trial is causally related to his testimony that the Kingston drive did not
contain pornography. We do not see the causal relationship between the supplemental
report and Detective Wiens‟s testimony about the lack of child pornography on the
Kingston drive. The supplemental report concerned authorship metadata and hash values
that connected the Emprex and Kingston drives to each other and to defendant. There is
no suggestion that the supplemental report dealt with a qualitative evaluation of whether
the images and video on Kingston drive constituted child pornography. In other words,
we see nothing in the record that suggests Detective Wiens‟s testimony that the Kingston
drive contained no child pornography was based on the analysis contained in the
supplemental report.



                                             11.
                              I.
THE ALLEGEDLY LATE DISCLOSURE OF DETECTIVE WIENS‟S REPORT DOES
                    NOT WARRANT REVERSAL
                                             A.
                                STANDARD OF REVIEW
       Though stylized as a single issue, defendant actually asserts multiple assignments
of error regarding the allegedly late discovery. There are important distinctions between
the separate issues. For example, the duty to disclose substantial material evidence to the
defense is distinct from the duty to correct false or misleading testimony. (In re Jackson
(1992) 3 Cal.4th 578, 595, disapproved on other grounds by In re Sassounian (1995) 9
Cal.4th 535, 545, fn. 6.) The allegedly false testimony regarding whether the Kingston
drive contained child pornography implicates, if anything, a prosecutor‟s duty to correct
certain false or misleading testimony. (See In re Jackson, supra, 3 Cal.4th at p. 595
disapproved on other grounds by In re Sassounian, supra, 9 Cal.4th at p. 545 fn. 6.)
Conversely, the allegedly late disclosure of Detective Wiens‟s report implicates, if
anything, statutory discovery obligations under section 1054.1 and the duty to disclose
evidence.
       Untangling these issues is not merely an academic exercise. The distinctions are
important because they trigger significantly different standards of review. When
prosecutors knowingly fail to correct the false or misleading testimony of their witness,
reversal is required if there is any reasonable likelihood the false testimony could have
affected the judgment of the jury. (People v. Dickey (2005) 35 Cal.4th 884, 909.)17 But
violations of discovery obligations in section 1054.1 are reviewed under the more



       17 “This standard is functionally equivalent to the „harmless beyond a reasonable
doubt‟ standard of Chapman v. California (1967) 386 U.S. 18.” (Dickey, supra, 35
Cal.4th at p. 909.)



                                            12.
deferential harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836.
(People v. Verdugo (2010) 50 Cal.4th 263, 280.)
                                             B.
                        1. THERE WAS NO BRADY VIOLATION
       We will address the simplest issue first: whether there was a Brady18 violation.
Evidence ultimately presented at trial is not considered suppressed for Brady purposes,
even if the evidence was not disclosed during discovery. (People v. Verdugo, supra, 50
Cal.4th at p. 282. See also People v. Morrison (2004) 34 Cal.4th 698, 715.) All of the
relevant evidence identified by defendant was presented at trial (e.g. Detective Wiens‟s
report and testimony). There was no Brady violation.19

2. THE COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING DETECTIVE
                         WIENS‟S REPORT
       A prosecutor must disclose expert reports to the defendant or defense counsel.
(§ 1054.1, subd. (f).) There are two statutory time limitations for section 1054.1
disclosures. (§ 1054.7.) One applies to “material and information” that “becomes known
to, or comes into the possession of, a party within 30 days of trial.” (Ibid.) For this type
of material and information, disclosure must be generally occur “immediately.” (Ibid.)
Other disclosures must be made at least 30 days prior to trial, unless good cause is shown.
(Ibid.) Detective Wiens‟s report is the first type of evidence (i.e., “material” that came
“into the possession” of the prosecutor within 30 days of trial). Therefore, section 1054.7

       18   Brady v. Maryland (1963) 373 U.S. 83 (Brady).
       19 Moreover, a prosecutor‟s Brady obligation may, under proper circumstances, be
satisfied when defense counsel is free to examine all materials regarding the case that are
in the prosecutor‟s possession. (People v. Zambrano (2007) 41 Cal.4th 1082, 1134-1135,
disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The prosecutor noted at one of the hearings that the thumb drives “had been made
available” to defense counsel “for a long period of time.” Thus, the record indicates that
defense counsel was free to analyze the source files for hash tags and authorship metadata
well before trial.


                                             13.
required the prosecutor to disclose the report “immediately,” which she did. Because the
prosecution complied with section 1054.7, the disclosure was not late. (§ 1054.7. See
also People v. Rutter (2006) 143 Cal.App.4th 1349, 1353-1354; People v. Gonzales
(1994) 22 Cal.App.4th 1744, 1759 [“there is a distinction between having evidence and
refusing to disclose, and discovering evidence and disclosing it at a time when it places
the other side at a disadvantage.”].)
       As we explained in People v. Hammond (1994) 22 Cal.App.4th 1611 (Hammond),
the prosecution does not have a “general obligation to gather evidence.” (Id. at p. 1624.)
And, there is “a significant difference between failure to gather evidence immediately or
to find all evidence that might subsequently become important[,] and willful failure to
comply with discovery orders.” (Id. at p. 1623.) The trial court‟s ruling was precisely in-
line with our observations in Hammond:

       “A trial is not a scripted proceeding.… [D]uring the trial process, things change
       and the best laid strategies and expectations may quickly become inappropriate …
       events that did not loom large prospectively may become a focal point in reality.
       Thus, there must be some flexibility. After all, the „ “true purpose of a criminal
       trial” ‟ is „ “the ascertainment of the facts.” ‟ [Citation]” (Id. at p. 1624, italics
       added.)
       Thus, “[a]fter hearing a witness, the necessity of a rebuttal witness may become
more important.” (Hammond, supra, 22 Cal.App.4th at p. 1624.) Similarly, after a
perceived change in defense strategy, additional analysis by Detective Wiens became
more important to the prosecution.
       The trial court was in the best position to evaluate these considerations. Because
the trial court‟s ruling was well within the bounds of its discretion, we will not disturb it.




                                              14.
 3. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE
       TESTIMONY OF DETECTIVE WIENS REGARDING THE REPORT
       Defendant also argues that Detective Wiens‟s testimony constituted a “last
minute” disclosure of the “exculpatory evidence” that the Kingston drive did not contain
pornography.
       The evidence that the Kingston drive did not contain child pornography was (1)
the drive‟s contents, and (2) the testimony of Detective Wiens that there was no child
pornography on the Kingston drive. Nothing in the record suggests that the contents of
the Kingston drive were not disclosed well before trial. And, Detective Wiens‟s
testimony was, by definition, disclosed to the defense “immediately” as it was spoken
into existence. 20 (§ 1054.7.) Thus, the testimony could not have been “disclosed” any
earlier than it was.

  4. THE VARIOUS PORTIONS OF OFFICER BASSI‟S TESTIMONY CITED BY
DEFENDANT FALL INTO TWO CATEGORIES, NEITHER OF WHICH WARRANT
REVERSAL: (1) TESTIMONY THAT WAS NOT FALSE OR MISLEADING; AND
       (2) TESTIMONY THAT WAS CORRECTED BY THE PROSECUTOR
       Defendant argues that testimony by Officer Bassi “misled the jurors.” Much of
the allegedly misleading testimony cited by defendant is not conceivably false or
misleading. The remainder of Officer Bassi‟s cited testimony, which may arguably be
misleading, was corrected by the prosecutor.

       a. Testimony that Kingston Drive Contained “Four or Five” Nude Pictures of
          Children
       Defendant argues that Officer Bassi‟s testimony that the Kingston drive contained
“four or five” nude pictures of children reinforced the conclusion that the Kingston drive


       20The trial court made a similar observation, noting that “the discovery which the
People were to provide were the documents themselves, any written reports of the officer,
or any oral reports of the officer. And it appears, frankly, that those oral reports were
made today [at trial] .…”



                                            15.
contained child pornography. Defendant does not show how this testimony is false. To
the contrary, the testimony is consistent with the interview recording played at trial in
which defendant told Officer Bassi there were four to five images of nude children on the
Kingston drive. Defendant cites no evidence contradicting the presence of four to five
images of nude children on the Kingston drive.
       Nor does defendant show how this testimony “reinforced” the conclusion that the
Kingston drive contained child pornography. Officer Bassi later testified that pictures of
naked children not performing sexual acts would not be child pornography.
       The only conclusion reinforced by the cited testimony was that the Kingston drive
contained four or five images of naked children. Defendant cites nothing in the record to
lead us to believe this conclusion was erroneous.

       b. Officer Bassi’s Testimony that Pictures of Naked Children Would Lead Him to
          Search Further to Determine if There Were Pictures of Sexual Acts
       Defendant also argues:
              “Redirect examination by the prosecutor also reinforced the impression that
       both drives contained pornography. She asked Officer Bassi if he reviewed
       pornographic files from the Emprex drive, and he said yes.… Then[,] when he
       agreed that naked pictures of children on the Kingston drive were not
       pornography, he responded affirmatively to Ms. Clinton when she asked, „Would
       finding pictures of naked children on a drive cause you to want to look to see if
       there were pictures of sexual acts?…‟ ” (Italics added, citations omitted.)

       There is no indication this testimony was false or misleading. If finding pictures
of naked children on a drive would cause Officer Bassi to want to see if there were also
pictures of sexual acts, then an affirmative response to the question was the only truthful
one he could have given. Defendant cites no evidence that in fact finding pictures of
naked children did not make Officer Bassi want to see if there were also pictures of
sexual acts. Indeed, the desire to investigate further was eminently reasonable once
Officer Bassi saw pictures of naked children. Absent evidence that it was false or
misleading, this portion of Officer Bassi‟s testimony is not grounds for reversal.


                                             16.
       c. Officer Bassi’s Testimony that the Kingston Drive Contained Child
          Pornography
       Defendant‟s most colorable argument regarding misleading testimony relates to
the following three exchanges, where Officer Bassi indicates that some child
pornography was found on the Kingston drive:

       1. “[Defense counsel]: Now, these thumb drives – and I‟m going to kind of jump
          around a little bit. These thumb drives, 11(a) and 11(b), these are still, I mean,
          fully loaded with illegal child pornography, right?
             “[Prosecutor]: Objection. Calls for speculation.
             “THE COURT: Overruled. You can answer, sir.
             “THE WITNESS: They should be, yes. [¶] … [¶]”

       2. “[Defense counsel:] Okay. So this one given to the phasers is smaller than the
          Emprex drive. You viewed a little bit, or small material, child pornography
          material on both of these; is that right?
             “A        That‟s correct. [¶] … [¶]”

       3. “[Defense counsel:] Officer Bassi, the Emprex drive is the lower silver one
          there, right?
             “A        That‟s correct.

             “Q       And that is the one that had most of the material, the child
             pornographic material on it, right?
             “A        Yes.

             “Q       There was also some found on the blue and white drive, that is, the
             Kingston drive that is assigned to the phasers, right?
             “A        Correct, four to five pictures.”
       In these exchanges, Officer Bassi does indicate that child pornography was found
on the Kingston drive. As the prosecutor indicated at closing argument, this was
incorrect.
       Prosecutors are not responsible for all erroneous testimony offered by their
witnesses. (See, e.g., People v. Riel (2000) 22 Cal.4th 1153, 1211-1212.) Rather, the


                                              17.
prosecutor‟s duty is to correct any testimony of prosecution witnesses it knows or should
know is false or misleading. (People v. Vines (2011) 51 Cal.4th 830, 873; In re Jackson,
supra, 3 Cal.4th at p. 597.) Here, the prosecutor did correct the testimony.
       After Officer Bassi testified, the prosecutor elicited testimony from Detective
Wiens that he did not believe the images on the Kingston drive were child pornography,
and that all of the child pornography was found on the Emprex drive. Moreover, the
prosecutor stated unequivocally at closing argument that, “the Kingston drive does not
have child pornography on it.” (Cf. People v. Marshall (1996) 13 Cal.4th 799, 830
[noting that falsity of witness‟s testimony not concealed from jury because prosecutor
made clear in closing argument that witness‟s testimony was incorrect].) To the extent
the prosecutor had a duty to correct Officer Bassi‟s testimony regarding child
pornography on the Kingston drive, she satisfied that duty.
                                   II.
              THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
           IN RULING THAT EVIDENCE ABOUT DEFENDANT‟S PRIOR
               DIAGNOSIS AND TREATMENT WAS INADMISSIBLE
       Defendant also contends that the trial court erred in excluding evidence of
defendant‟s prior diagnosis and treatment as a sex offender under Evidence Code section
352. We review such rulings for abuse of discretion, and will only reverse where the
lower court‟s ruling is arbitrary, capricious or patently absurd. (People v. Thomas (2012)
53 Cal.4th 771, 806.)
       Defendant claims that the court abused its discretion by excluding testimony
“about appellant‟s diagnosis and treatment as a sex offender.” This testimony, defendant
argues, would have been “relevant to the issue of acting „knowingly‟ at the time of the
offense.” Specifically, his “intent could have been consistent with embracing his
fantasies in accord with his treatment.” As we will explain, this contention confuses
intent with motive, and distorts the nature of section 311.11‟s “knowing” mental state
requirement.


                                            18.
                                 A.
             EVIDENCE OF DEFENDANT‟S MOTIVE IS IRRELEVANT
       “ „Motive describes the reason a person chooses to commit a crime. The reason,
however, is different from a required mental state such as intent .…‟ ” (People v. Wilson
(2008) 43 Cal.4th 1, 22.)
       Section 311.11, subdivision (a) states, in part:

       “Every person who knowingly possesses or controls any matter, representation of
       information, data, or image, including, but not limited to, any … photograph, …
       computer hardware, computer software, computer floppy disc, data storage media,
       CD-ROM, or computer-generated equipment or any other computer-generated
       image that contains or incorporates in any manner, any film or filmstrip, the
       production of which involves the use of a person under the age of 18 years,
       knowing that the matter depicts a person under the age of 18 years personally
       engaging in or simulating sexual conduct, as defined in subdivision (d) of Section
       311.4, is guilty of a felony .…” (§ 311.11, subd.(a), italics added.)
       Section 311.11 has no motive requirement, only a mental state requirement that
the defendant knew he/she possessed or controlled child pornography.21
       To embrace one‟s fantasies is a possible reason a person may choose to commit a
crime. It is a motive. Conversely, knowing that you possess certain images or videos
depicting minors participating in or simulating sex relates to a mental state. (Cf. § 29
[knowledge is a mental state].) A motive is different from a mental state, Wilson, supra,
43 Cal.4th at p. 22, and a violation of section 311.11 requires the latter, not the former.
       This is why two individuals could have different motives but the same “knowing”
mental state. For example, a distributor may knowingly possess child pornography for
pecuniary gain. An addict may knowingly possess child pornography for personal use.

       21 See § 311.11; CALCRIM 1141 [Element 3: “When the defendant acted,
(he/she) knew that the matter showed a person under the age of 18 years who was
personally participating in or simulating sexual conduct”]. Cf. People v. Kurey (2001) 88
Cal.App.4th 840, 849 [assuming with discussing that it must be proven that defendant
“had knowledge that the matter depicted a person under the age of 18 years personally
engaging in or simulating sexual conduct .…”].



                                             19.
Both individuals violate section 311.11 because they “knowingly possess[ed]” the
pornography, regardless of their reason for doing so. Evidence about their particular
motive is not dispositive – or even relevant – to whether section 311.11 has been
violated.22
       So, defendant very well may have knowingly possessed child pornography for the
purpose of embracing his fantasies in accord with his treatment. However, such a
motive, even if established and accepted by the jury, would not have negated defendant‟s
knowledge that the images he possessed were child pornography.23 Because defendant
knowingly possessed or controlled the child pornography, it is not relevant why he did so.
       The trial court did not deprive defendant of his right to present a defense by
excluding irrelevant evidence. (See People v. Thornton (2007) 41 Cal.4th 391, 444-445.)
                                    B.
            DEFENDANT‟S APPEAL TO “EQUITABLE” CONSIDERATIONS
                      DOES NOT WARRANT REVERSAL
       Defendant argues that the jury should have been allowed to consider the decision
to prosecute him, because he was making a “good faith effort to progress” and “had not
harmed a third party.” Both contentions are arguable. Even if they were not, reversal
would not be warranted.
       “ „The district attorney‟s function is quasi-judicial in nature [citation], and ... he is
vested with discretionary power in determining whether to prosecute in any particular
case. An unbroken line of cases in California has recognized this discretion and its

       22 This is in contrast to the crime of possessing child pornography with intent to
distribute, which requires two mental states: (1) knowing possession and (2) a specific
intent to do a further act (e.g., distribute). (People v. Young (1977) 77 Cal.App.3d Supp.
10, 13.) In such a case, evidence as to why defendant possessed the child pornography
would presumably be relevant.
       23 To the contrary, such a motive would support the requisite level of knowledge.
How could defendant possess child pornography for the purpose of embracing his
fantasies unless he knew the nature of the images to be consistent with those fantasies?



                                              20.
insulation from control by the courts.…‟ [Citation.]” (Gananian v. Wagstaffe (2011) 199
Cal.App.4th 1532, 1543.) Thus, “under the doctrine of separation of powers, courts must
scrupulously avoid interfering with the executive‟s prosecutorial function, including the
exercise of its broad charging discretion.” (People v. Cortes (1999) 71 Cal.App.4th 62,
79.)
       The judiciary‟s concern is that the prosecutor had probable cause to believe the
accused committed an offense. Other considerations beyond that foundational
requirement are left to the discretion of the prosecutor, not courts or juries. (See People
v. Thomas (2012) 54 Cal.4th 908, 950-951 (conc. opn. of Werdegar, J.).) “ „[S]o long as
the prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file …
generally rests entirely in his discretion.‟ [Citation.]” (Ibid.) It is not for us (or the jury)
to decide the circumstances under which a prosecutor should exercise discretionary
charging leniency.
                                        DISPOSITION
       The judgment is affirmed.



                                                                    _____________________
                                                                    Poochigian, J.

WE CONCUR:


______________________
Wiseman, Acting P.J.


______________________
Gomes, J.




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