P. v. Weaver

Filed 4/12/07 P. v. Weaver CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis, III, Judge. Affirmed.

A jury convicted Ronald Arthur Weaver of committing a total of six lewd acts upon two children under the age of 14 in violation of Penal Code^[1]section 288, subdivision (a): Three upon Alyssa R. (counts 1-3, hereafter the Alyssa charges),^[2]and three upon Natalie T. (counts 5-7, hereafter the Natalie charges).^[3] The jury found Weaver not guilty of a fourth charged lewd act he allegedly committed upon Alyssa (count 4: touching Alyssa's vagina with his tongue). The jury found true the enhancement allegation in each of counts 1 through 3 and 5 through 7 that Weaver committed an offense against more than one victim within the meaning of section 667.61, subdivisions (b), (c) and (e).

The court sentenced Weaver to a total prison term of 75 years to life, consisting of an indeterminate term of 15 years to life on count 1, a concurrent 15-years-to-life term on count 2, and 15-years-to-life terms on counts 3, 5, 6 and 7, which the court ordered served consecutively to the terms imposed on counts 1 and 2.

On appeal, Weaver contends (1) the court violated his federal and state constitutional rights to due process by denying his motion to dismiss the charges against him, which was based on his claim that he suffered prejudice as a result of a delay in arresting him; (2) the court abused its discretion by denying his motion to sever the charges involving Natalie (counts 5-7) from the charges involving Alyssa (counts 1-4); (3) the court erred in denying his motion to quash the search warrant for his home and to suppress the images of nude female children found on his computer, because the totality of the circumstances "just don't add up to probable cause"; (4) the court (a) violated his state and federal constitutional rights to due process and equal protection by admitting testimony describing the photographs of nude female children seized from his computer to be used as propensity evidence under Evidence Code section 1108; and (b) abused its discretion by admitting those image descriptions under Evidence Code section 352; and (5) the court violated his due process right to be convicted only on proof beyond a reasonable doubt by instructing the jury under CALJIC No. 2.50.01, thereby permitting the jury to find by a preponderance of the evidence that the computer images were child pornography, and then use those images as proof beyond a reasonable doubt that he committed the charged offenses. We reject these contentions and affirm the judgment.

FACTUAL BACKGROUND

A. The People's Case

1. The Alyssa Charges (Counts 1-3)^[4]

Linda E. (Linda) lived with her children Keith and Kristyn, and her granddaughter Alyssa, who is Kristyn's daughter. Alyssa was born in November 1994, and was 10 years old at the time of trial.

Weaver met Keith in the late 1990's. Weaver and Keith developed a friendship, and Weaver began visiting Keith and the rest of his family at Linda's home almost every day. Weaver became one of Linda's best friends, and Linda invited him to Alyssa's birthday party in November 1999, when Alyssa turned five years of age.

Weaver was nice to Kristyn, and spent a lot of time with Alyssa. He taught Alyssa how to use a computer and play computer games, and bought her toys and games.

Alyssa testified that when she and Weaver played computer games at her grandmother's (Linda's) house and she sat on his lap, he would place his fingers in her vagina, under her underwear. She stated she did not remember his ever touching her "butt." Later, however, she testified Weaver touched her bottom when she was sitting on his lap at the computer. Weaver touched her more than one time while they were playing on the computer.

Alyssa stated that Weaver touched her vagina in Linda's swimming pool when Alyssa was sitting on his lap on the pool stairs. She also testified that Weaver took off her underwear and touched her vagina with his tongue when she was lying on the bed in Linda's bedroom while Linda was in the living room, and this happened more than once. Weaver touched her vagina with his tongue both in the pool and in her grandmother's bedroom.

Linda testified she once observed Weaver and Alyssa play a game called "Sleeping Beauty," during which Weaver bent down over Alyssa, who was lying on her back on a couch pretending to be asleep, and kissed her on the mouth to awaken her. When Alyssa opened her eyes, Weaver told her they had to do it again, and he again kissed her on the mouth. Weaver kissed Alyssa four times in a row. Linda, who was sitting and reading nearby, was shocked by what she saw and stopped the game.

Linda observed Alyssa play computer games with Weaver, and she normally sat on his lap. Linda did not always go with Weaver and Alyssa when they went swimming together. Sometimes Weaver and Alyssa were alone together in Linda's bedroom when Linda was in another room. One time, at the end of 1999 or the beginning of 2000 when Alyssa was sick and asleep in Linda's bed, Linda saw Weaver kneeling by the bed with his hands under the covers. Linda asked him to leave the bedroom. This incident bothered Linda, but not enough to make her call the police.

During the afternoon on July 14, 2000, Kristyn arrived at her mother's home to pick up Alyssa. Kristyn went into the bedroom and saw Alyssa sitting on Weaver's lap in front of the computer. Kristyn testified that Alyssa's legs straddled Weaver, who had his hand on Alyssa's thigh, under her dress, about half way between her hip and knee. Kristyn was bothered by what she saw, and angrily told Alyssa to get down and not sit on Weaver's lap. Kristyn also testified that Alyssa later told her, while pointing to her vagina, that Weaver had touched her under her skirt and underwear. Kristyn took Alyssa home, and later returned to Linda's house, where she and Weaver were sitting in the den. Kristyn confronted Weaver and called the police after he left.

Kristyn spoke to Detective James Nares when he arrived at the house later that same day. On his recommendation, Kristyn took Alyssa to Children's Hospital the next day for an examination and an interview by an abuse specialist. Alyssa's interview was videotaped and transcribed, the tape was played during the trial, and the transcript was provided to the jury.

2. The Natalie Charges (Counts 5-7)^[5]

Natalie's parents, Russell T. and Deborah T., met Weaver in 1983 when Weaver and Deborah worked together. Weaver became their friend and business associate, and he was a frequent visitor at their house before and after their children were born.

Natalie was born in November 1987. Russell testified that she began wetting her bed in 1996, and she would pull away from him when he tried to tuck her into bed at night. Even after Russell and his family moved to Virginia in November of 1998, when Natalie was 11 years of age, she still avoided him.

At trial, Natalie testified she was 17 years old. Before her family moved to Virginia and they lived in San Diego, Weaver was a friend of the family, he visited her house often, and she called him Uncle Ron. Weaver played video games with Natalie and her sister.

Natalie testified that Weaver touched her vagina under her underwear more than once when she lived in San Diego. The last time he touched her vagina was in 1998, when she was 11 years old and he was helping her family pack before they moved to Virginia. Natalie was sitting on a low dividing wall between the entryway and the living room, dusting the wall with a rag. Weaver, who was standing behind her, put his hand inside her pants and touched her vagina under her underwear.

Prior to that time, Weaver touched Natalie when she and her family lived in another house. Natalie was sitting in Weaver's lap on a chair at the kitchen table, as her sister was watching TV in the sitting room. As Weaver helped her make a ball out of rubber bands, he put his hand down her pants, and touched her vagina under her underwear with his fingers.

Another time, Natalie was sitting on Weaver's lap playing a computer game with him when he touched her vagina with his fingers under her underwear. Natalie would try to avoid Weaver by leaving the house and running to a friend's house when Weaver came over to visit. Sometimes she would hide in her room.

Natalie stated she did not tell her parents about what Weaver was doing to her because she was afraid of him. However, when she and her family were in Virginia, she told her mother, Deborah, about it because they were far away from him and she felt safer. Deborah testified that in March 1999, after she and her family moved to Virginia, she learned that Weaver had molested Natalie when Natalie told her he had touched her inappropriately. As a result of Natalie's disclosures, Deborah reported what Natalie had told her to Child Protective Services and Detective Rojelio Reyes in San Diego.

3. Investigation (Alyssa)

In July 2000, Detective Nares contacted Alyssa's mother, Kristyn, and arranged for a medical examination of Alyssa at Children's Hospital. Deborah Davies, a forensic interviewer at the Chadwick Center at Children's Hospital, interviewed Alyssa later that month. During the videotaped interview, Alyssa told Davies that Weaver had put his fingers inside her vagina when she was sitting on his lap playing on the computer at her grandmother's house. Weaver told Alyssa to keep what he was doing to her secret because he did not want them to get caught.

Alyssa told Davies that Weaver touched her vagina "a lot of times," probably 100 or 150 times. She also told Davies that Weaver touched her inside her buttocks. The touching happened the most on the bed in her grandmother's bedroom.

Detectives Reyes and Nares spoke with Weaver at his apartment in Ramona in early September 2000. After the interview, Detective Nares learned that Weaver had possibly molested another child, Natalie.

4. Investigation (Natalie)

In late March 1999, Detective Reyes spoke by telephone with Natalie's mother, who was in Virginia. He was unable to set up an interview with Natalie.

The next day, Detective Reyes met with Weaver at the Ramona Sheriff's Station. Detective Reyes tape recorded the interview. Weaver said he had known Natalie since the time she was born, and he did not know why Natalie was saying he had touched her vagina. He wrestled with Natalie and her sister a lot, and it was possible he might have touched her vaginal area while they were wrestling, or while he grabbed Natalie by her shoulder and crotch to swing her in the air. Weaver said he did not remember touching Natalie under her clothing, and if his hand slipped under her clothing, it was unintentional.

Weaver also told Detective Reyes that he had held Natalie by her legs and at different angles when she was practicing gymnastics, and it was possible his hand could have been near her vaginal area. He also said Natalie's parents were always home when he was playing with Natalie and her sister.

In early September 2000, Detectives Reyes and Nares spoke to Weaver at his apartment in Ramona regarding the allegations concerning Alyssa. When Detective Nares asked Weaver whether similar accusations of child molestation had been made against him, he said "yes," and mentioned Natalie. Detective Nares reviewed the case file regarding Natalie, and in late October 2000 flew to Virginia to speak with Natalie and her parents. Weaver was arrested in mid-November 2000.

5. Search Warrant and Seizure of Computer Images

Patrick Diven testified that he met Weaver in college in the late 1980's and they became good friends. Diven visited Weaver at his home and used his computer. Once, between 1990 and 1992, Diven saw on Weaver's computer sexually explicit photographs depicting young girls with adults. Although he found the pictures disturbing, Diven did not say anything about them to Weaver or report what he saw to the police at that time.

Diven was supportive of Weaver even when he was charged with child molestation. Diven wrote a letter to Weaver's attorney stating he had never observed Weaver acting inappropriately around children.

In the spring of 2001, Diven again used Weaver's computer, while Weaver was in the bathroom, and saw a picture of a young girl, six or seven years of age, holding a flower. The next picture could have been of the same girl with adults, which he described as "very bad." He saw pictures of naked children.

Diven closed the pictures, printed some tax forms, and left Weaver's home. A few days later, Diven called someone he knew at the Sheriff's office in Ramona, and then called Dana Gassaway, an investigator at the District Attorney's office. Although he initially wanted to remain anonymous, Diven revealed his name after he spoke with Gassaway.

In April 2001, Detectives Nares, Joe Green and Michelle Bustamonte, and Investigator Gassaway, executed a search warrant at Weaver's apartment in Ramona. They seized two computers, one from the living room and one from a small office, and turned them over to the Regional Computer Forensic Laboratory. They also seized a zip drive, keyboard, joy stick, mouse, printer, and some floppy discs.

Later that month, Detective Nares asked the Federal Bureau of Investigation (FBI) to look at the contents of the two seized computers. Special Agent Jason Weiss, a forensic computer specialist, found in Weaver's computers approximately 1,850 image files of young children in sexually explicit acts or poses.

B. The Defense

Weaver, who was 45 years of age at the time of trial, testified in his own defense. He denied owning a computer that contained pornographic images between 1990 and 1992. He denied ever touching Alyssa's vagina or buttocks with his fingers while they were sitting at the computer, and he denied touching her vagina in her grandmother's bedroom or any other place. He also denied touching Alyssa's vagina with his tongue.

Weaver also denied touching Natalie's vagina while sitting in a kitchen chair while they were at a computer or in the den.

Weaver testified that in August 2001, he had testified at another hearing that the images found on his computer were there for research purposes regarding the characteristics of pedophiles and their victims, legal strategies, and issues of suggestibility. He explained that he had misunderstood the question to which he responded at that 2001 hearing. At trial, Weaver stated the images had nothing to do with research or legal strategies, or characteristics of pedophiles. He was looking at the pictures because he was trying to find "relevant information," but found they did not provide such information. He did not learn much from the photographs, but learned a lot from the web sites concerning the characteristics of pedophiles. He found no redeeming or qualitative value to any of the photographs he looked at. When asked why he kept images on his computer hard drive if they had no qualitative or educational value and he could learn nothing from them, Weaver replied he deleted "large amounts" of images, but he simply did not delete all of them after he had saved them. He did not view any of the images for purposes of sexual gratification, and he found them "pretty disgusting." He denied that Diven ever came to his home between 1990 and 1992, and testified he did not own a computer during that time period.

DISCUSSION

I

DENIAL OF WEAVER'S MOTION TO DISMISS

Weaver first contends the court violated his federal and state constitutional rights to due process by denying his motion to dismiss the information, which was based on his claim that he suffered prejudice as a result of a delay in arresting him. Specifically, Weaver complains that the prosecution took 19 months to investigate the charges, and this was "much more than a reasonable amount of time." He contends he was prejudiced by not being arrested until November 15, 2000, two years after his last possible contact with Natalie in November 1998 and four months after Alyssa accused him in July 2000 of molesting her, because (1) had he been arrested and prosecuted in a timely manner on the Natalie charges, those weak charges would not have been joined with the weak Alyssa charges, and he would probably have been acquitted because Natalie's family was not cooperating with the prosecution at that time and there would have been no complaining witness; (2) joining the Natalie and Alyssa charges subjected him to an increase in sentencing exposure under the multiple victim enhancement set forth in section 667.61, subdivisions (b), (c) and (e), which resulted in his being sentenced to five consecutive 15-years-to-life terms; and (3) the delay increased the chances that crucial evidence was either lost or tainted by allowing Natalie's and Alyssa's memories to fade, and by allowing Alyssa's mother to coach her. Weaver also contends that he was prejudiced by the delay because (4) had he been arrested and convicted of the Natalie charges in a timely manner, "there could have been no [Alyssa] charges because he would have been incarcerated and thus unavailable to commit any offenses against Alyssa." We reject these contentions.

A. Background

Weaver was a friend of Natalie's family from 1983 to November 1998 when the family moved to Virginia. In March 1999, Natalie's mother called Child Protective Services to report that Weaver had sexually molested Natalie. On March 30 of that year, Detective Reyes called Natalie's mother but was unable to schedule an interview with Natalie due to a lack of cooperation. The next day, Detective Reyes interviewed Weaver, who denied any misconduct. Detective Reyes closed the case because he did not have enough evidence to file charges against Weaver.

Meanwhile, in 1999, Weaver befriended Alyssa and her family. In July 2000, Alyssa's mother, Kristyn, contacted the San Diego County Sheriff's Department and reported that Weaver had sexually molested Alyssa. The next day, Alyssa was examined and interviewed at Children's Hospital. Detective Nares spoke with Kristyn, and they called Weaver on the telephone in late August 2000.

In early September 2000, Detectives Nares and Reyes interviewed Weaver at his home regarding Alyssa's allegation that he had molested her. During that interview, Weaver denied any wrongdoing but mentioned that he had been accused of molesting Natalie. The detectives later reviewed the closed case file concerning the allegation that Weaver had molested Natalie.

In late October 2000, as a result of looking at Natalie's file, Detective Nares flew to Virginia to interview Natalie and her parents, and to persuade them to cooperate in prosecuting Weaver. About two weeks later, in mid-November 2000 after the police interviewed Alyssa's mother and uncle, Weaver was arrested.

1. Denial of Weaver's Motion to Dismiss

Weaver filed a pretrial motion to dismiss the information on the basis of prearrest delay. He claimed the delay prejudiced him by (1) improperly allowing the People to engineer the joinder of the Natalie charges, which had been too weak to prosecute, with the equally weak Alyssa charges for the purpose of gaining a tactical advantage over him; (2) exposing him to a "staggering" increase in sentencing exposure by allowing the joinder of the Alyssa charges, thereby adding a second victim within the meaning of the multiple victim enhancement ( 667.61, subds. (b), (c) & (e)); (3) permitting the introduction of evidence based upon tainted testimony, as shown by Alyssa's preliminary hearing testimony that her mother had told her "a lot of things" about Weaver, and Alyssa's statement in a November 2000 interview that Weaver was a "weirdo," a term that her mother had used in referring to him; and (4) allowing Alyssa's and Natalie's memories to fade.

The court denied Weaver's dismissal motion, finding that (1) Weaver's assertion that the delay had resulted in fading memories and tainted testimony was "pure speculation," and (2) Weaver had failed to meet his burden of showing actual prejudice.

B. Legal Principles Governing Claims of Prearrest Delay

When a defendant claims his due process rights were violated because of a delay between the crime and the filing of a complaint, the defendant must first prove he or she suffered actual prejudice by the delay. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910-911 (Dunn-Gonzalez).) This showing of prejudice " 'must be supported by particular facts and not . . . by bare conclusionary statements.' [Citation.]" (Serna v. Superior Court (1985) 40 Cal.3d 239, 250.) If the defendant fails to show prejudice, the prosecution is not required to present reasons for, or otherwise justify, the delay. (Dunn-Gonzalez, supra, at p. 911.) "Prejudice is a factual question to be determined by the trial court." (People v. Hill (1984) 37 Cal.3d 491, 499.) "[U]nless a defendant can demonstrate specific prejudice flowing from the delay, the draconian remedy of dismissal should not be invoked merely because the accused was not arrested as quickly as would be possible in the best of all worlds. It is only because a delay can infect the truth finding process by preventing the accused from mounting a viable defense that a dismissal is ever justified." (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946.)

If the defendant makes a showing of prejudice, the burden then shifts to the prosecution to justify the delay. (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) "If defendant fails to show prejudice the court need not inquire into the justification for the delay (since there is nothing to 'weigh' such justification against). [Citations.]" (People v. Lawson (1979) 94 Cal.App.3d 194, 198.)

"Finally, if defendant has met his burden, the court must balance the harm to the defendant against the justification for the delay. [Citation.]" (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) "The trial court's ruling must be upheld on appeal if it is supported by substantial evidence. [Citation.]" (Id. at p. 912.)

C. Analysis

We first reject Weaver's claim that the prosecution took "more than a reasonable amount of time" to investigate the Natalie charges. "[A] prosecutor is entitled to a reasonable time in which to investigate an offense for the purpose of determining whether a prosecution is warranted. [Citation.]" (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) Here, the trial evidence established that after Natalie's mother reported to Child Protective Services in March 1999 that Weaver had sexually molested Natalie, Detective Reyes promptly called Natalie's mother but was unable to schedule an interview with Natalie or her parents due to a lack of cooperation. The next day, Detective Reyes interviewed Weaver, who denied any misconduct. Detective Reyes's trial testimony shows he had to close the case because, through no fault of his own, he did not have a complaining witness, and thus he did not have enough evidence to file charges against Weaver. About 18 months later, in early September 2000, when Detective Nares interviewed Weaver in connection with allegations that Weaver had molested Alyssa, Weaver mentioned Natalie and indicated he had been accused of molesting her. In October, after reviewing Natalie's file, Detective Nares flew to Virginia to speak with Natalie and her parents, who agreed to cooperate. Following further investigation, Weaver was arrested in November of that year. Significantly, Weaver does not contend that prosecution of the Natalie charges was barred by the applicable statute of limitations. Substantial evidence thus shows that any delay in Weaver's arrest was attributable to reasonable investigation of the allegations he had molested Natalie and Alyssa.

We also conclude that substantial evidence supports the court's finding that Weaver failed to meet his burden of showing actual prejudice as a result of the alleged prearrest delay. A review of Alyssa's and Natalie's testimony shows that Weaver suffered no prejudice as a result of alleged impaired or tainted memory on the part of the victims. Alyssa and Natalie both knew Weaver, and thus his identity was not at issue. Although Alyssa and Natalie were not certain of the dates the acts of molestation occurred, both were able to describe with particularity the way in which Weaver touched them and the circumstances surrounding the touchings.

Weaver's increased "sentencing exposure" under the multiple victim enhancement codified in section 667.61, subdivisions (b), (c) and (e), is attributable to the fact, found by a jury by evidence beyond a reasonable doubt, that he sexually molested two young girls. Weaver has not shown, and cannot establish, a connection between such increased exposure and any delay that occurred in the execution of his arrest for those crimes.

We also reject Weaver's claim that he suffered prejudice in that the alleged delay in his arrest and prosecution resulted in the joinder of the "weak" Natalie charges with the "weak" Alyssa charges, thereby giving the prosecution an unconstitutional tactical advantage at trial. Weaver's characterization of those charges as "weak" is belied by the trial testimony of the victims, Alyssa and Natalie, which (as already noted) was detailed regarding both the manner in which Weaver sexually molested them and the circumstances surrounding the molestations. Weaver's assertion that the Natalie and Alyssa charges would probably have resulted in acquittals had they been tried separately, is speculative and not supported by the record.

Last, Weaver cannot establish prejudice by claiming that, but for the delay in his arrest, the Alyssa charges would not have been brought against him. Weaver's theory is that if he had been arrested, prosecuted and convicted on the Natalie charges in a timely manner, the Alyssa charges would not have been filed against him because "he would have been incarcerated and thus unavailable to commit any offenses against Alyssa." The Alyssa charges were brought against him because he sexually molested Alyssa, as the jury found following a trial in which Weaver testified and presented a vigorous defense, not because of any prearrest delay. For all of the foregoing reasons, we conclude the court did not err by denying Weaver's motion to dismiss the charges.

II

DENIAL OF MOTION TO SEVER CHARGES

Weaver next contends the court abused its discretion by denying his motion to sever the Natalie charges (counts 5-7) from the Alyssa charges (counts 1-4) because (1) the charges were not cross-admissible under Evidence Code section 1101, subdivision (b); and (2) the joinder of the Natalie and Alyssa charges, which he asserts were weak when separated, caused a "bootstrapping" and "highly inflammatory spillover" effect that tainted his trial, and was prejudicial under any standard because it "permitted the prosecution to present to the same jury in one trial two unrelated, highly prejudicial and inflammatory sets of circumstances." We reject these contentions.

A. Background

In his motion to sever, Weaver asserted he would suffer substantial prejudice from a joint trial on the Natalie and Alyssa charges. Claiming that the prosecution was attempting to join two weak cases to make one strong case, Weaver complained that if he were ordered to stand trial on the joined charges, the jury would "be inflamed that he is alleged to have molested not one, but two, girls." Asserting that the two cases were not similar, Weaver also claimed that if they were tried separately, evidence in one case would not be admissible in the other, and thus there was no cross-admissibility of evidence between the two cases under Evidence Code sections 1101 and 352, which generally govern the admissibility of evidence of other crimes.

In its opposition, the prosecution argued that (1) the charges were lawfully joined under section 954, which expresses a legislative preference for joint trials of similar offenses against a single defendant, because all of the charges were "offenses of the same class of crimes" within the meaning of that statute; (2) Weaver would suffer no prejudice by the joinder because the offenses were similar and "propensity" evidence was admissible in sex crimes cases under Evidence Code section 1108; and (3) the evidence of child pornography found in Weaver's computer was admissible under that statute and Evidence Code section 352.

The court denied Weaver's motion to sever, finding that the statutory requirements for joinder had been met, neither case was more inflammatory than the other, and neither case was weaker or stronger than the other. The court also found the two cases were similar in character since each was a sexual molestation case, and in each case Weaver allegedly became a close friend of the victim's parents, spent time with the victim's families, became a trusted member of the families, and played games and interacted with the victim on a level that was unique for a non-family member. The court further found a consistency in the manner the charged offenses occurred in that Weaver allegedly placed both victims on his lap while they played with a computer, and he would then touch the victims under their underwear. The court determined that such evidence was cross-admissible as propensity evidence under Evidence Code sections 1108 and 352 because its probative value outweighed its prejudicial effect.

B. Applicable Legal Principles

1. Statutory requirements for joinder of criminal charges

Section 954 sets forth the statutory requirements for joinder of criminal charges and provides in part that an accusatory pleading may charge two or more different offenses, in separate counts, that are either "connected together in their commission" or are of the "same class" of crimes. (See generally 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, 394, p. 559.)

Offenses may be "connected together in their commission" within the meaning of section 954 even though they relate to conduct committed at different times and places against different victims. (People v. Miller (1990) 50 Cal.3d 954, 987.)

Crimes are of the "same class" for purposes of section 954 if they possess some common characteristics or attributes, and the courts in California have interpreted that term in a broad fashion. (See People v. Thomas (1990) 219 Cal.App.3d 134, 139-140 [charges of attempted murder, robbery, and ex-felon in possession of a firearm properly joined as belonging to the class of "assaultive crimes"]; People v. Lindsay (1964) 227 Cal.App.2d 482, 492 [charges of kidnapping, robbery, assault with a deadly weapon, and burglary properly joined as crimes of the same class].)

Because joinder of related charges ordinarily promotes efficiency, the law prefers it. (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

2. Severance of criminal charges

Section 954 also authorizes discretionary severance of charges, providing in part: "[T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (See generally 5 Witkin & Epstein, supra, Cal. Criminal Law, Criminal Trial, 395, p. 562.)

In Williams v. Superior Court (1984) 36 Cal.3d 441, 447-448 (Williams), the California Supreme Court held that even where joinder is statutorily permissible under section 954, severance may be required if joinder results in prejudice so great as to deny the defendant a fair trial. The high court explained that "[w]hen substantial prejudice is clearly shown, a trial court's denial of a defendant's motion for severance constitutes an abuse of discretion under [section 954]. Fundamental principles of due process compel such a conclusion." (Williams, supra, at p. 452.)

In Williams, the Supreme Court adopted a two-part test to determine whether the denial of a motion for severance was an abuse of discretion. The initial step is to determine whether the evidence pertinent to one case would have been admissible in the other under Evidence Code section 1101 (discussed below), "[s]ince cross-admissibility would ordinarily dispel any possibility of prejudice." (Williams, supra, 36 Cal.3d at p. 448; see also People v. Kraft (2000) 23 Cal.4th 978, 1030 (Kraft).) The high court explained, however, that even if evidence of each incident is not admissible in the separate trial of the other, it does not necessarily follow that severance is required because the trial court's discretion to deny severance is broader than its discretion to admit evidence of uncharged offenses. (Williams, supra, at p. 451.)

The second step in the Williams two-part test requires the trial court to weigh the probative value of considering one alleged offense in light of another, along with any additional factors favoring joinder, against the prejudicial effect of joinder. (Williams, supra, 36 Cal.3d at p. 451.)

Cross-admissibility of evidence, however, is not required for joinder of offenses and is only one of the factors to be considered in determining whether joinder is proper. In 1990, California voters approved Proposition 115, which (among other things) added section 954.1 to the Penal Code. (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.) Section 954.1 expressly permits joinder of offenses even when the evidence is not cross-admissible.^[6]

3. Admissibility of other crimes evidence (Evid. Code,  1101, 1108 and 352)

The rules governing the admissibility of evidence of the defendant's commission of a crime other than the one for which the defendant is then being tried, are well-settled. "Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident . . .) other than his or her disposition to commit such an act.' " (People v. Gray (2005) 37 Cal.4th 168, 202 (Gray).)

Because evidence of other crimes may be highly inflammatory, a trial court must scrutinize with great care the admissibility of such evidence under Evidence Code sections 1101 and 352. (Gray, supra, 37 Cal.4th at p. 202.) Evidence Code section 352 provides that "[t]he court in its discretion may 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."

Evidence Code section 1108 allows admission of other sexual offenses to establish the defendant has a propensity to commit sexual offenses. (See People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta).) Subdivision (a) of Evidence Code section 1108 provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."

In Falsetta, the Supreme Court described the factors a trial court should consider in determining whether to admit or exclude, under Evidence Code section 352, evidence that would be admissible under Evidence Code section 1108: "[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917.)

The trial court has broad discretion to exclude other crimes evidence, whether admitted under Evidence Code sections 1108 or 1101, subdivision (b), if the probative value of the evidence is outweighed by a danger of undue prejudice. (Evid. Code, 352; Falsetta, supra, 21 Cal.4th at p. 919.)

4. Standard of review

A trial court's denial of a defendant's motion to sever criminal charges is reviewed under an abuse of discretion standard. (Kraft, supra, 23 Cal.4th at p. 1030.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (People v. Osband (1996) 13 Cal.4th 622, 666.)

In assessing whether the trial court abused its discretion in denying a motion to sever, the reviewing court examines the state of the record at the time of the ruling. (See Kraft, supra, 23 Cal.4th at p. 1032.) However, "[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the 'defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process.' [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 162.)

In light of the provisions of section 954.1 (see fn. 6, ante), when the statutory requirements for joinder under section 954 are met, a defendant must make a clear showing of prejudice to establish that a trial court's denial of a severance motion constitutes an abuse of discretion. (People v. Marshall (1997) 15 Cal.4th 1, 27.) In Marshall, the California Supreme Court explained that "[w]hether a trial court abused its discretion in denying a motion to sever necessarily depends upon the particular circumstances of each case. [Citations.] The pertinent factors are these: (1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case. [Citation.]" (Id. at pp. 27-28.)

B. Analysis

Applying the foregoing legal principles, and reviewing the court's denial of Weaver's motion to sever the Natalie charges from the Alyssa charges under the abuse of discretion standard (Kraft, supra, 23 Cal.4th at p. 1030), we first conclude that the statutory requirements for joinder of the charges were satisfied because all of the charges were of the "same class" of crimes for purposes of section 954. Specifically, all of the charges in the information involved alleged lewd acts upon a child under the age of 14 years in violation of section 288, subdivision (a): Four upon Alyssa (counts 1-4), and three upon Natalie (counts 5-7).

Since the requirements for joinder were satisfied, Weaver can predicate error only on a clear showing of potential prejudice. (See Kraft, supra, 23 Cal.4th at p. 1030.) Our determination whether Weaver was prejudiced by joinder of the Natalie and Alyssa charges requires us first to examine whether evidence on each set of charges would have been admissible in a separate trial on the other. (Ibid.) If so, any inference of prejudice is dispelled. (Ibid.; see also Falsetta, supra, 21 Cal.4th at p. 907.)

Here, Diven's testimony that he saw on Weaver's computer sexually explicit images of young girls with adults, and Special Agent Weiss's testimony that he found in that computer about 1,850 digital image files of child pornography depicting young children in sexually explicit acts or poses, would have been cross-admissible in separate trials on the Natalie and Alyssa charges. A person is guilty of violating section 288, subdivision (a) if he or she willfully and lewdly touches a child under the age of 14 years "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." ( 288, subd. (a), italics added.) "[S]exual gratification must be presently intended at the time such 'touching' occurs. [Citations.]" (People v. Martinez (1995) 11 Cal.4th 434, 444, italics added.)

The testimony of Diven and Weiss would have been cross-admissible in separate trials under Evidence Code section 1101 as evidence relevant on the factual issue of whether of Weaver intended to gratify his or his victims' "lust, passions, or sexual desires" (see 288, subd. (a)) when he touched them under their underwear.

Similarly, the evidence of Weaver's lewd conduct upon Natalie and Alyssa would have been cross-admissible in separate trials under both Evidence Code section 1101, as evidence of his intent when he touched each child under her underwear, and Evidence Code section 1108 as sex offense propensity evidence. The trial record shows that the various incidents involved in both sets of charges shared common features. In each case, Weaver gained access to the victim by becoming a trusted friend of the victim's family. He spent time at each girl's home, and took part in family activities. Weaver had a business relationship with a member of each girl's family. He worked at an airport with Alyssa's uncle, Keith, at Gillespie Field in the City of El Cajon. He worked with Natalie's mother at Cubic Corporation, and was a partner in an Amway business with Natalie's parents. Both girls were young when Weaver molested them. He had unsupervised access to each girl, and he played games with them to create an opportunity to molest them.

The evidence also showed that Weaver molested Natalie and Alyssa in a similar manner. For example, each girl testified that Weaver touched her vagina under her underwear when she was sitting on his lap playing a computer game.

Furthermore, Weaver has failed to demonstrate that either set of charges was more inflammatory than the other, or that the evidence of his guilt was significantly weaker under one set of charges when compared to the evidence of his guilt under the other. As already discussed, all of the charges alleged the same class of crime, and the evidence at trial showed that the manner in which he molested Natalie was similar to the manner in which he molested Alyssa.

We conclude that because the evidence of Weaver's sexual offenses in each case, like the evidence of his possession of child pornography, would have been cross-admissible in the other had the Natalie and Alyssa charges been separately tried, any inference of prejudice resulting from joinder of the two sets of charges was dispelled. (See Williams, supra, 36 Cal.3d at p. 448; Kraft, supra, 23 Cal.4th at p. 1030.) Weaver has failed to demonstrate that the probative value of considering each set of alleged offenses in light of the other was outweighed by the claimed prejudicial effect of joinder. He was not charged with a death penalty offense in this matter. In sum, we conclude the court did not abuse its discretion in denying Weaver's motion to sever.

III

DENIAL OF MOTION TO QUASH SEARCH WARRANT

Weaver also contends the court erred in denying his motion to quash the search warrant for his home and to suppress the images of nude female children found on his computer, because the totality of the circumstances "just don't add up to probable cause." This contention is unavailing.

A. Background

Weaver brought a motion to quash the search warrant and suppress the child pornography images found on his home computer, claiming that (1) the warrant lacked probable cause as it was based on uncorroborated hearsay statements by an anonymous informant named Pat, later identified as Pat Diven; (2) the warrant failed to establish probable cause as it was based on Diven's conclusory statement that the two photographs he saw on Weaver's computer depicted a young girl posing "in a suggestive manner"; and (3) the officer who prepared the affidavit in support of the warrant misrepresented Diven's recorded and transcribed statement, and misled the magistrate, by falsely asserting that Diven had said the child in the second photograph had "her legs spread apart and her genitals were exposed in a suggestive manner."

The court denied the motion, finding under the totality of the circumstances "there was more than a substantial basis provided for the magistrate to make a determination probable cause existed." The court also denied Weaver's motion for reconsideration of that ruling, finding that Diven was a citizen informant, not an unreliable anonymous informant, and the information provided in the affidavit was sufficient to support the probable cause finding.

B. Applicable Legal Principles

"A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched." ( 1525.)

A search warrant must be upheld if it meets the totality-of-the-circumstances test of Illinois v. Gates (1983) 462 U.S. 213 (Gates). (People v. Glenos (1992) 7 Cal.App.4th 1201, 1206.) In Gates, the United States Supreme Court explained that in determining whether an affidavit is sufficient to establish probable cause for issuance of a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed. [Citation.]" (Gates, supra, 462 U.S. at pp. 238-239, italics added.) The Gates court also explained that " 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.' [Citations.]" (Id. at p. 235.)

An informant's veracity or trustworthiness may be demonstrated through independent police corroboration of the information provided. (People v. Terrones (1989) 212 Cal.App.3d 139, 146-147 (Terrones).) An officer may generally depend on information received in official channels to develop probable cause for a search warrant affidavit. (People v. Lopez (1986) 181 Cal.App.3d 842, 845 (Lopez).)

When reviewing the granting or denial of a motion to suppress, we accord great deference to a magistrate's probable cause finding. (Gates, supra, 462 U.S. at p. 236.) A search warrant affidavit is presumed valid. (Franks v. Delaware (1978) 438 U.S. 154, 171.) Doubtful or marginal cases should be resolved in favor of upholding the warrant. (United States v. Ventresca (1965) 380 U.S. 102, 106; People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 203-204.) A defendant claiming the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and proving the errors or omissions. (People v. Amador (2000) 24 Cal.4th 387, 393.)

"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) The power to evaluate the credibility of witnesses, resolve testimonial conflicts, weigh evidence and draw factual inferences rests with the trial court alone. (People v. Arango (1993) 12 Cal.App.4th 450, 452-453.) We presume in favor of the trial court's proper exercise of its authority. (Id. at p. 453.)

C. Analysis

On appeal, Weaver's principal claim is that Dana Gassaway, an investigator at the District Attorney's office who prepared the search warrant affidavit, "intentionally or with reckless disregard of the truth embroidered upon and in material ways falsified what Diven in fact said" during Gassaway's interview with him. Weaver asserts that "[t]he key allegation" in Gassaway's affidavit is that Diven told him that one of the girls shown in the two photographs Diven saw on Weaver's computer "had her legs spread apart and her genitals were exposed in a suggestive manner." He complains that this allegation was "highly conclusory." Weaver's claims are unavailing.

In his affidavit, Gassaway stated that he tape-recorded his telephone conversation with the informant, "Pat" (Diven), who at that time wanted to remain anonymous. Gassaway indicated that Diven told him that he had known Weaver for about 10 years, he met Weaver through Weaver's business as an aircraft mechanic and flight instructor, and he first learned that Weaver had been charged with child molestation when Weaver called him from jail and asked him to write a character letter. Diven told Gassaway that Weaver said he had been on the computer at a friend's house, and his friend's five-year-old daughter was sitting on his lap using the computer with him when her mother saw his hand on the child's thigh. Diven also reported that Weaver said another child had made a similar accusation against him, but the charges were "bull shit."

Gassaway stated in his affidavit that Diven told him he had seen some pornography on Weaver's computer. Specifically, Gassaway stated: "Pat explained that about 3 or 4 years ago he had seen some pornography on [Weaver's] computer. The photo depicted a girl Pat described as a teeny bopper. . . . He said he looked at two separate files. Pat said they each contained one photograph that he described as sick. He told me [the] photos were of nude white females approximately 5 years old. He said one photo depicted the child standing in a normal stance. In the other photo the child had her legs spread apart and her genitals were exposed in a suggestive manner. He said he thought they were two different girls."

On appeal, Weaver implicitly claims that Gassaway misrepresented what Diven told him in order to mislead the magistrate into believing that one of the photographs Diven saw on Weaver's computer was child pornography. Specifically, Weaver maintains that "[m]ere nudity is not per se 'suggestive'," because "a nude figure, even one whose genitals are visible, may just as easily be devoid of sexual meaning as 'suggestive,' " but "[t]he trial court seems to have thought otherwise." Weaver also maintains that "Diven never, ever, stated the girl in question had 'her genitals exposed,' nor did he say they were exposed 'in a suggestive manner'--this conclusion is Gassaway's own gloss upon what Diven actually said. Diven's 'legs apart' and Gassaway's 'legs spread apart' can have vastly different meanings." Weaver maintains that "legs spread apart," a term he asserts Diven did not use during the interview, "connotes conscious posing, with a wider opening of the thighs and an outward rotation of the knees. Elvis Presley did that and it was deemed 'suggestive.' "

Weaver's assertions are belied by the transcript of the interview. In the interview, Diven indicated the girls in the photographs were young, they were nude, they were "posing," and the focus was on their genitals. Divens said it was "disgusting." He then said, "It's a picture of a human being with their legs apart." Gassaway then asked whether the legs "were spread apart," and Diven replied, "Yeah," and indicated it was not just a picture of a child standing in the nude. Diven informed Gassaway that the second photograph he saw was "very graphic."

Thus, the transcript shows that, contrary to Weaver's claim on appeal, Diven did indicate to Gassaway during the interview that the young nude girl in the photograph he described as "disgusting" and "very graphic," was in fact "posing" with her "legs spread apart."

We reject Weaver's contention that the totality of the circumstances presented to the magistrate in support of Weaver's motion "just [did not] add up to probable cause." Although Diven did not use the term "suggestive" during the interview, Gassaway's affidavit accurately reported the gist of Diven's descriptions of the photographs he saw on Weaver's computer, and provided a substantial basis for the magistrate to find that a fair probability that contraband or evidence of a crime would be found in Weaver's home. (See Gates, supra, 462 U.S. at pp. 238-239.) As already discussed, only a "probability, and not a prima facie showing, of criminal activity" need be shown to establish probable cause. (Id. at p. 235.)

Weaver's attempt to show that Diven's statements as a then-anonymous informant were not reliable at the time the court denied Weaver's motion, is also unavailing. Gassaway's affidavit indicated that the information provided by Diven was corroborated by information Gassaway received through official channels, the District Attorney's case files and the police investigative reports. As already discussed, an informant's veracity or trustworthiness may be demonstrated through independent police corroboration of the information provided (Terrones, supra, 212 Cal.App.3d at pp. 146-147), and an officer may generally depend on information received in official channels to develop probable cause for a search warrant affidavit (Lopez, supra,181 Cal.App.3d at p. 845).

Here, Gassaway stated in his affidavit that, "[a]fter speaking to Pat, I reviewed the District Attorney case file and the police investigative reports as they relate to [Weaver] and the acts he is suspected of committing. The information provided to me by Pat concerning the molest is accurate and included details that indicated to me that Pat was being truthful." The corroborated information he listed included, for example, the fact that one of Weaver's alleged victims was a five-year-old girl, one of the char