P. v. Fassio

Filed 6/25/07 P. v. Fassio CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Daron Mark Fassio pled no contest in Sacramento County to attempted lewd and lascivious conduct on a child under age 14 and, on September 28, 2004, the trial court suspended execution of a four-year prison term and placed defendant on probation for five years.

The offense stemmed from an incident in which the 36-year-old defendant, while touching his exposed penis, stopped his car next to the 13-year-old victim and asked her for directions. The victim saw defendants penis and backed away. Defendant asked the victim if she wanted to get in the car and show him where to go. When the victim told defendant she did not want to get in the car, he asked her if she was sure. The victim said she was sure, and defendant left. Defendant had approached two other young girls in a similar manner on the same date and, previously, had sexual intercourse with two minors in the same age range.

In January 2006, defendant pled no contest in El Dorado County to annoying or molesting a child and possessing child pornography, the latter offense having occurred the day after he was placed on probation in the Sacramento County case.

The material forming the basis for the child pornography charge was discovered during a search of defendants bedroom, which was conducted because defendant was a suspect in an indecent exposure incident involving a child that had occurred the day before he was placed on probation. Numerous computer disks containing thousands of pornographic photographs, including four photographs that appeared to be child pornography, were confiscated from defendants room. The majority of the photographs involved younger-looking pornographic material downloaded from pornographic web sites with the word teen in the names.

Defendant admitted he had visited various pornography web sites but denied he had an interest in young children and said that, as far as he knew, there was no child pornography on his computer. According to defendant, on the day he was placed on probation in the Sacramento County matter, he returned home and cleaned his hard drive pursuant to his attorneys advice, and transferred some computer files--such as photographs of his house and dogs and correspondence--to disks. However, a police detective testified the disks confiscated from defendants room contained no e-mails or text files, and only two of the disks contained photographs of anything other than pornography.

A computer repair technician testified that it was possible to have images from pop-ups stored on a computer, which would be maintained in the computers temporary file without the users knowledge. A detective with the sheriffs office who specialized in computer forensics testified that it would be difficult to transfer a pop-up image onto a disk because it would be necessary to go through all of the temporary internet files and pick out individual images to transfer. In any event, defendant testified he did not save any temporary files when he cleaned his computer.

The computer repair technician also testified that it would not be possible to access a full-size picture from thumbnail pictures exhibited on websites and stored on a hard drive unless the user accessed the full picture. According to the sheriffs detective, the pornographic images of children found on the disks in defendants room were normal picture-sized images, not pop-up sized files.

Concluding that defendant had no credibility, the Sacramento County trial court found defendant in violation of the terms of his probation and imposed the previously suspended four-year term.

Defendant appealed.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, asks us to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We have undertaken an independent examination of the entire record in this case and have found no arguable error that would result in a disposition more favorable to defendant.

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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