Filed 9/28/17 P. v. Collins CA6

Opinion following order for reconsideration

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JEROME G. COLLINS, Defendant and Appellant.

H040380 (Santa Clara County Super. Ct. No. C1230868)

A jury convicted defendant Jerome G. Collins of possession of child pornography. The trial court suspended imposition of sentence and placed defendant on three years’ probation. Defendant appealed, challenging two evidentiary rulings, five probation conditions, and an order requiring him to pay attorney fees. In People v. Collins (Oct. 6, 2015, H040380) [nonpub. opn.], a divided panel of this court rejected defendant’s challenges to the evidentiary rulings, ordered the modification of four of defendant’s probation conditions, and ordered the vacation of an attorney fee order for insufficient evidence of defendant’s present ability to pay. Among the probation conditions this court ordered modified were sex offender probation conditions imposed pursuant to Penal Code section 1203.067, subdivisions (b)(3) and (b)(4)[1], which required defendant to participate in polygraph examinations and to waive the psychotherapist-patient privilege.

Our Supreme Court granted review (S230507) and ordered briefing deferred pending decision in People v. Friday, S218288, People v. Garcia, S218197 and People v. Klatt, S218755. In People v. Garcia (2017) 2 Cal.5th 792 (Garcia ), the Supreme Court rejected Fifth Amendment and overbreadth challenges to the section 1203.067, subdivision (b)(3) condition requiring participation in polygraph examinations and right‑to-privacy and overbreadth challenges to the section 1203.067, subdivision (b)(4) condition requiring waiver of the psychotherapist-patient privilege. The court then transferred this matter back to this court with directions to reconsider the case in light of Garcia.

Defendant filed a supplemental brief representing that he had successfully completed probation and that, as a result, his probation condition challenges are moot. Defendant did not address the other claims of error raised in his appellate briefs. The People filed a supplemental brief “agree[ing] that the appeal is moot” because defendant is no longer on probation.

While we agree that defendant’s challenges to his probation conditions are moot, his other claims of error are not. Accordingly, we restate our prior analyses and conclusions rejecting defendant’s evidentiary challenges and accepting his challenge to the attorney fee order. For reasons that follow, we affirm the judgment, but strike the order requiring appellant to pay $500 in attorney fees.

I. Factual and Procedural Background

The Santa Clara County District Attorney filed an information charging defendant with one count of possession of child pornography (§ 311.11, subd. (a)) on September 6, 2012. The following evidence was adduced at defendant’s trial in the fall of 2013.

San Jose Police Officer Sean Pierce testified that he uses a law enforcement Web site to identify individuals in the San Jose area who possess child pornography. On that Web site, Pierce searches for computers in the area that have files containing commonly used child pornography search terms in their shared folders. On September 26, 2011, one such search indicated that a computer associated with a particular Internet protocol (IP) address contained six files associated with child pornography search terms. After confirming that one of the files in fact contained child pornography, Pierce obtained and served a search warrant on Comcast, the Internet service provider associated with the IP address. Comcast identified defendant as the subscriber for the IP address and provided Pierce with his name and home address.

On March 7, 2012, officers searched defendant’s home pursuant to a search warrant. The residence was a three-bedroom mobile home defendant shared with his mother and two brothers. In defendant’s bedroom, officers found a laptop containing child pornography, which they seized along with two external hard drives.

Defendant was not home at the time, so Pierce and an arrest team went to defendant’s place of employment. Officers phoned defendant and asked him to come outside without informing him why they were there. When defendant complied, Pierce handcuffed him and led him into an undercover police minivan. Pierce interviewed defendant after reading him his Miranda[2] rights. A recording of the 45-minute-long interview was played at trial.

A transcript of that interview shows defendant told Pierce he used the peer-to-peer network BearShare to download pornography. Pierce informed defendant “we’re here for the child pornography” and asked defendant how often he downloaded it. Defendant responded “I don’t think I do” and stated that he does not seek out child pornography and that he is not interested in young girls. When Pierce asked defendant about a particular child pornography video officers found on his computer, which features a naked girl with a mask on, defendant acknowledged downloading the video from BearShare. The parties refer to that video, which is a commonly traded child pornography video, as “the Tara video”; we shall do the same.

Defendant told Pierce the girl in the video appeared to be 12 or 13 years old and that the video was “sad.” Defendant said he had watched the Tara video “[m]ore than once.” Pierce then asked, “are we talkin’ a half-dozen times, are we talkin’ a dozen times?” Defendant responded “Um . . . right now, I’d say about half a dozen times, maybe.”

Defendant told Pierce he had heard of the search terms “PTHC,” “Hussyfan,” and “R@ygold,”—terms Pierce testified are associated with child pornography—but that he did not know what they meant or had not used them in a long time. Defendant said that, instead, he regularly searched “rape fantasy” and, because he likes women with small breasts, terms such as “18,” “girls,” and “tiny tits.”

Chris Hardin, a computer forensic examiner employed by the San Jose Police Department, testified as an expert in the examination of computers and other digital storage devices for child pornography. Hardin examined the hard drive from defendant’s laptop and defendant’s external hard drive. Hardin found approximately 13 videos containing child pornography on defendant’s hard drives. Two of those videos were found on the external hard drive. Three of the videos Hardin found were introduced into evidence and a 20-second clip of one of the videos—the Tara video—was played for the jury.[3] Hardin testified that the Tara video depicted a nine-year-old girl being sexually assaulted by an adult male. Thirteen still images from 11 of the videos Hardin testified constituted child pornography were admitted into evidence and published to the jury. Many of the video file names included the term “PTHC,” which Hardin testified stands for “preteen hard-core.” Many also referenced the age of the victim, for example “9 yo,” “12 yo,” and “14 year old.” One video file name included the phrase “long fuck of 12 yo.” Three of the child pornography videos, including the Tara video, depicted rape scenarios or rape fantasies. Legal pornography not involving minors also was found on defendant’s computer.

Defendant testified that he is interested in rape fantasy pornography, which involves staged acts between adults without any real violence. While he had seen the terms “PTHC,” “Hussyfan,” and “R@ygold” in searching for pornography online, he did not know what they meant. Defendant testified he had accidentally downloaded child pornography in the past and deleted the files when he realized what they were. Generally, defendant would not read the file names of videos before he downloaded them because he had his glasses off.

With respect to the Tara video, defendant testified that, at the time he was interviewed by Pierce, he had only seen it once and not all the way through. He was confused when Pierce asked if he had seen the video a half dozen times or a dozen times, which is why he falsely told Pierce he had seen it a half dozen times. Defendant said he was aware the Tara video was on his computer “at least at some point.”

The jury found defendant guilty. On November 8, 2013, the court suspended imposition of sentence and placed defendant on three years’ probation subject to various conditions, including that he serve a term of eight months in county jail. The court also ordered defendant to pay $500 in attorney fees pursuant to section 987.8 to partially reimburse the county for the cost of his public defender.

Defendant timely appealed.

II. Discussion

A. Evidentiary Rulings

Defendant argues the trial court erred by admitting into evidence three pornographic videos depicting children that were found on his computer and external hard drive and still images from those videos. Defendant maintains the court likewise erred in admitting evidence of his proclivity for rape fantasy pornography. According to defendant, the videos, images, and rape fantasy evidence should have been excluded under Evidence Code section 352 as substantially more prejudicial than probative.

1. Legal Principles and Standard of Review

A trial court has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) For purposes of Evidence Code section 352, evidence is “prejudicial” if it “ ‘ “uniquely tends to evoke an emotional bias against defendant” ’ without regard to its relevance on material issues.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp).) That is, “ ‘the statute uses the word [“prejudice”] in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958.) “ ‘ “[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” ’ ” (People v. Scott (2011) 52 Cal.4th 452, 491.)

“We apply the deferential abuse of discretion standard when reviewing a trial court’s ruling under Evidence Code section 352.” (Kipp, supra, 26 Cal.4th at p. 1121.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)

2. The Videos and Stills Were Properly Admitted

Defendant was charged with violating section 311.11, subdivision (a), which makes it a felony for a “person [to] knowingly possess[] or control[] any matter . . . , the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct.” Thus, “the jury [was] required to determine not only whether the video[s on defendant’s computer and hard drive] contained child pornography, but also whether defendant knowingly possessed or controlled the video[s] with the knowledge that [they] depicted [persons] under 18 years of age personally engaged in or simulating sexual conduct.” (People v. Holford (2012) 203 Cal.App.4th 155, 164 (Holford).) At trial, defendant did not dispute the first element—that the videos found in his possession contained child pornography. Instead, he maintained he lacked the requisite knowledge that his computer contained any pornographic images, saying that while he had accidentally downloaded child pornography in the past he believed he had deleted it.

On appeal, defendant maintains the videos and stills were not probative of his knowledge of the contents of the videos on his computer. Given the inflammatory nature of that evidence, it should have been excluded, he says. Defendant further contends that even if the child pornography images had some probative value, 13 still shots were cumulative. The People counter that the sexually explicit content of the videos and stills constituted circumstantial evidence that defendant knew the material was child pornography.

We agree with the People that the content of the videos was relevant to prove defendant knowingly possessed child pornography. Defendant testified that he deleted any child pornography he accidentally downloaded. Had jurors not seen still images from the videos in question, they may have concluded that those videos depicted minors who defendant might reasonably have believed were older than 18 years of age. Thus, “[a]lthough the age of the girl[s] in the video[s] was not in active dispute, the video[s] [were] . . . relevant to show that this was not a situation in which defendant could have mistakenly believed a 16- or 17-year-old child actor was older than 18 years of age.” (Holford, supra, 203 Cal.App.4th at p. 172, fn. 8.) Similarly, absent evidence of the videos’ contents, jurors may have questioned whether defendant could reasonably have believed they did not depict sexual conduct. The videos and stills also were relevant, therefore, to show that this was not a situation in which defendant could have mistakenly believed the videos were not pornographic. For these reasons, the trial court did not abuse its discretion in determining that the videos and stills were probative of defendant’s knowledge.

The child pornography images undoubtedly were disturbing. (Holford, supra, 203 Cal.App.4th at p. 171 [“child pornography is not pretty and will always be unpleasant”].) That said, given their relevance to the disputed issue of defendant’s knowledge, we cannot say the trial court abused its discretion in concluding that their probative value was not substantially outweighed by a substantial danger of undue prejudice. (Id. at pp. 167, 171 [in possession of child pornography trial, court did not abuse its discretion under Evid. Code, § 352 by admitting entire 25-minute-long video, noting the video “was the crime”].)

3. The Admission of Rape Fantasy Evidence Was Not Prejudicial

Defendant also challenges the admission of evidence he enjoys rape fantasy pornography under Evidence Code section 352. That evidence, according to defendant, was irrelevant to whether he knowingly possessed child pornography and was prejudicial because it painted him as a sexual deviant.

The rape fantasy evidence had at least minimal probative value as to defendant’s knowledge. The Tara video, which defendant admitted is child pornography and told Pierce he watched more than once, contained a rape scene. Two other child pornography videos found on defendant’s hard drives also depicted rape scenarios. Evidence defendant prefers rape fantasy pornography supports the inference he knowingly saved those videos, despite the fact they featured minors, because they appealed to him.

Even assuming the trial court abused its discretion in admitting the rape fantasy evidence, that error was harmless. The admission of evidence in violation of state law, here Evidence Code section 352, is reversible only upon a showing that it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) There was overwhelming evidence that defendant knew there was child pornography on his computer. He told police he watched the Tara video—which he admitted was child pornography—at least twice and as many as six times. His hard drives contained more than 10 child pornography videos, suggesting they were not downloaded because of an isolated accident or two. Evidence defendant saved two child pornography videos to an external hard drive supported the inference he knew he had them. And the videos’ sexually explicit file names also support the inference he knew he was accessing child pornography. In light of that evidence, it is not reasonably probable a result more favorable to defendant would have been reached had the jury not learned about his proclivity for rape fantasy pornography.

B. Probation Conditions

“ ‘ “[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal” ’ as moot.” (People v. DeLeon (2017) 3 Cal.5th 640, 645.) As the parties agree, defendant’s challenges to various probation conditions are moot, because he is no longer on probation and therefore no longer subject to the challenged conditions. (Ibid. [appeal regarding parole revocation proceedings technically moot where the defendant’s parole term had terminated].)

C. Ability to Pay Attorney Fees

Finally, defendant contends there is insufficient evidence in the record to support his ability to pay $500 to partially reimburse the county for the cost of his public defender, an objection he raised below.

1. Governing Legal Principles

Section 987.8 empowers the court to order a defendant who has received legal assistance at public expense to reimburse some or all of the county’s costs. (§ 987.8, subd. (b).) A court may order the payment of attorney fees pursuant to that provision only if it determines after a hearing that the defendant has the ability to pay. (Id., subds. (b), (e).) Such a finding must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Verduzco (2012) 210 Cal.App.4th 1406, 1421.)

In the context of section 987.8, “ability to pay” means “the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six‑month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (§ 987.8, subd. (g)(2).)

2. Analysis

According to the probation report, defendant worked as a manager at a Chili’s restaurant between 2006 and his arrest in March 2012 at a salary of $54,000 per year. Between 1992 and 2003, he was a manager at another restaurant and earned $65,000 a year. Defendant lived in his mother’s mobile home, was divorced, and had no children. He was placed on probation and ordered to serve a term of eight months in county jail with credit for 76 days served.

The People argue evidence of defendant’s past income and that he lived with his mother and had no family to support are sufficient to support the $500 attorney fees order. We disagree. That defendant had a well-paying job 20 months prior to sentencing says nothing about his “present financial position,” absent evidence of his assets, savings, or expenses. (§ 987.8, subd. (g)(2)(A).) And the fact that he was to serve time in county jail indicates he would have limited financial and employment opportunities during the relevant six-month period. (Id., subd. (g)(2)(B) & (C).) While defendant was to be released within that six-month period, there is nothing in the record to suggest he will find employment quickly, particularly given his status as a convicted sex offender.

We conclude there was insufficient evidence of defendant’s present ability to pay $500 in attorney fees to support the trial court’s section 987.8 order. While we could remand with directions to conduct a hearing, we conclude, in the interests of judicial economy and efficiency, that the appropriate action is simply to strike the attorney’s fees order.

III. Disposition

We modify the judgment by striking the order that appellant pay $500 in attorney fees. As so modified, the judgment is affirmed.

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