Opinion
H041593
04-24-2018
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JAMES GRAHAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. F25062, ME000051)
Defendant Matthew James Graham was found guilty by a jury of one count of possession or control of child pornography with a prior conviction. (Pen. Code, § 311.11, subd. (b).) In a bifurcated proceeding, the trial court found true the allegations that Graham had suffered eight prior convictions for serious or violent felonies and two prior prison commitments. The trial court granted Graham's Romero motion as to all but one of his prior strike convictions. Graham was sentenced to a total term of 14 years in prison, consisting of the middle term of six years (doubled to 12 years) plus consecutive one year terms on each of the prison prior commitments.
Unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, Graham raises the following claims of error: (1) the trial court erred by: (a) allowing the prosecutor to argue that his silence in the face of police questioning constituted an adoptive admission; and (b) instructing the jury on adoptive admissions under CALCRIM No. 357; (2) the prosecution engaged in misconduct by arguing possession of child pornography creates a "marketplace for the exploitation of children"; (3) there was insufficient evidence to support his conviction for possession of child pornography; (4) the trial court erred in calculating his custody credits; and (5) there is a clerical error in the abstract of judgment.
The People concede there are clerical errors in the abstract of judgment, and we find the concession appropriate. Accordingly, we will direct that the abstract be modified. We reject Graham's remaining claims of error and will affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Graham was charged by information filed August 2, 2013, with one count of possession or control of child pornography with a prior conviction (§ 311.11, subd. (b)). The information further alleged that Graham had suffered eight prior serious or violent felony convictions and two prior prison commitments.
A. Evidence presented at trial
1. Prosecution's case
At the outset of the trial, the court advised the jury that it must accept the following stipulated facts as true: (1) Graham had three prior convictions for engaging in lewd and lascivious conduct with a child under the age of 14 in 1997 (§ 288, subd. (a)) and that the offenses involved three separate female victims who were between eight and 11 years old at the time; (2) Graham was sentenced to prison for these convictions and was released from custody on March 11, 2011; and (3) "Graham has been diagnosed as a pedophile which is a chronic lifelong condition."
a. Peter Paluck
In May 2011, Paluck was employed as a parole officer in Santa Cruz County and was tasked with supervising Graham's parole a couple of months after Graham's release from prison. Among other parole conditions, Graham was required to report to Paluck weekly and could not "view, possess or have access to any material, periodicals, newspapers, magazines, [or] catalogs that depict adults or children in undergarments, nude, [or] partially nude." Graham told Paluck during one of their meetings that he was attracted to adult women, as well as "girls that are not in diapers and under the age of 12" who were "petite," "cute," and "blond."
b. Pamela Downing
In July 2011, Downing was working as a reference librarian at the Santa Cruz Public Library in downtown Santa Cruz. At that time, the library had approximately 15 computers, connected to the Internet, available for public use. A member of the public would simply enter their library card number at an unoccupied terminal and they could then use that computer for one hour. These computers were located on the first floor, behind the reference desk, and "out in the open." The library did not have filtering or other censoring software installed on any of these computers, but users were on "an honor system" that they should not use the computers to view any kind of pornography. Around noon on July 27, 2011, Downing called the police after receiving information about Graham's use of one of the library's computers.
c. Santa Cruz Police Officer Jonathan Bush
Bush was on foot patrol a few blocks away and arrived at the library in response no more than five minutes later. Upon his arrival, he was directed to monitor the activity of a person (later identified as Graham) using one of the computers, so Bush positioned himself about 20 feet from Graham and watched him for about five minutes. Bush said he did not get closer because he did not want Graham to know he was being observed by a police officer.
As Bush watched, Graham brought up various images on his screen, including images of "young women posing in either lingerie and bathing suits." Bush could not tell whether the females in these images were under or over the age of 18. They "appeared to be younger females[,] [but] were definitely not young children." Graham "was manipulating images and changing screens." At no time did Bush see Graham open an image of any landscapes.
Bush asked Downing to get a printout of the computer register in order to see who was using the computer and what time he logged on. Bush also contacted Detective Dave Pawlak, who was responsible for investigating computer crimes and Internet sex crimes for the Santa Cruz Police Department.
When Pawlak arrived, he and Bush continued to observe Graham for another minute or two. At no point did Graham leave the computer and no one took over the use of that computer from him.
Bush spoke with the library's information technology person, Daniel Landry. Bush asked Landry to save the browser history or Internet history on that particular computer so it could be determined afterwards what Web sites and images Graham had viewed during his session.
d. Daniel Landry
Landry testified about the library's computer systems. The computers which patrons used to access the Internet did not have hard drives, CD-ROM drives or USB ports, so users could not save or store any files, including image files, during their one hour sessions. When a user logged on, the computer's operating system and other necessary software, including an Internet browser, were delivered to that machine by the library's server. The server would also devote a section of its hard drive as temporary storage for images and other data called up by that user during their hour-long session. When the user logged off, however, the directory for that temporary storage is removed, clearing that portion of the server's hard drive for the next user.
Landry testified that a user could use the library computer to save files or images by e-mailing them to an e-mail account they used, or could print them out on the library's printer for a fee.
When asked if the library's computers tracked and stored a user's browsing history, Landry said that the library "disallow[ed] browsing history when we set up the browsers." Accordingly, there was no way to determine specifically which Web sites a user accessed during their session. Landry also confirmed that the library did not implement any filtering software which would restrict a user's ability to access sites exhibiting pornography, including child pornography.
On July 27, 2011, a police officer contacted Landry at the library and asked that he try to "capture any data pertaining to a computer that was being used by" Graham. Landry disabled the log off function on the computer Graham was using in case Graham's session was close to expiring. Landry then "made a copy of the entire user directory for that computer onto another device so that it would be available to the police." This data would include all the cached information, including images, that Graham would have accessed during his time on the Internet. Landry gave the device containing the user directory to the police.
According to Landry, at the expiration of the user's one hour allotment, the user would be automatically logged off and the data from their session erased.
e. Detective Dave Pawlak
Pawlak testified as an expert in computer forensics and child pornography.
Prior to July 2011, Pawlak had a conversation with Graham regarding his knowledge of computers, and learned that Graham had an e-mail account as well as a Facebook account. Pawlak learned that Graham "understood how to turn on a computer, how a web page works, how saving files worked, how deleting files worked, how to access his Facebook page and how to access his email accounts."
On July 27, 2011, Pawlak was called to the Santa Cruz Public Library by Bush. Upon arriving, he met with Bush who was observing Graham using the library computer. Pawlak and Bush continued to observe Graham for approximately five more minutes until Graham's Internet session ended. Pawlak, who approached within two feet of Graham, could see that Graham was viewing a Web site based in Russia, which was "kind of like a big catalog of pictures and links to users' pictures." Graham was looking at smaller versions of images on the Web site and "appeared to be discriminately clicking on or enlarging the images or clicking . . . the linked images of that [sic] pages." Pawlak observed Graham enlarge possibly four or five images, including one which appeared to be a young male, age seven to 10, wearing white briefs with the image limited to the area from just above the waist to the top of the thigh. Graham also viewed a couple of images of adult women with their breasts exposed, and "images of what appeared to be [nude female] juveniles." Pawlak testified the girls in those latter images were, in his opinion, "[a]bsolutely" under 18 years old and the images were consistent with child pornography Pawlak has seen in other cases he had investigated. Although Pawlak saw a number of other images on the Web site, some of which appeared to be landscape photos, he never saw Graham enlarge any images of landscapes. Rather, Graham scrolled by such images.
The Web site's domain suffix of ".ru" indicated the site was hosted in Russia. Pawlak was familiar with that specific Web site as it "commonly comes up in [child pornography] investigations."
When Graham's Internet session ended, Pawlak asked to talk to him about the last image Pawlak had seen on the computer screen. Graham seemed surprised Pawlak was there and "was somewhat defensive . . . that I had been so close to him and right behind him and I had . . . a direct idea of what he had just been doing." Because of the number of people inside the library, Pawlak asked Graham to go toward the entrance to talk, but Graham asked if they could converse outside of the library.
Pawlak and Graham spoke outside the library, and Pawlak used a digital recorder in his pocket to record the conversation. The recording was played for the jury.
At a later point in time, Pawlak reviewed the data provided by Landry, consisting of the user directory saved during Graham's Internet session. Some of the image files preserved in that cache were ones that Pawlak observed Graham enlarging as he sat at the library computer. Pawlak testified that, having gone through all the images contained in the cache, "the dominant depiction of a child did seem to be a blond female" consistent with Graham's stated preference. However, there were images of brunette children and boys as well.
2. Defense case
a. Robert Young
Young testified as an expert in computer forensics, the Internet, Internet browsers and computer data storage. In Young's opinion, the materials preserved by Landry in this case were "less than optimal." The browser history was not saved and Landry did not make a forensic copy of the Internet cache from the library server; instead, he "just dragg[ed] and dropp[ed]" the files onto a portable storage medium. By doing so, some of the dates and times related to the cached files were altered.
Young also testified that, because preview images on a Web site can be stored in the cache without ever being enlarged and viewed by the user, it was not possible to state definitively that Graham deliberately viewed any of the images which were saved to the cache. Also, without the browser history, it was not possible to determine if the images stored in the cache were present because Graham specifically searched for such images.
A cache provides temporary storage, and when the cache is full, it begins to delete the oldest data to make room for more recent images. Young testified that the cache files preserved in this case contained time stamps covering the entire period of Graham's Internet session, and in his opinion, it did not appear that any cached files had been deleted.
b. Pawlak
The defense also called Pawlak to testify. During the preliminary hearing, Pawlak identified four specific images he recalled Graham viewing at the library: "ADA39541 lower case d01"; "4FFDB 8AB lower case d01"; "B6994D02 lower case d01"; and "776198BF lower case d01." At trial, he identified five specific images, four of which were different from those he identified at the preliminary hearing, specifically: "5795A1F3 lower case d01"; "4FFDB8AB lower case d01"; "2317A497 low[er] case d01"; "E5D4F1AF lower case d01"; and "07162270 lower case d01."
There appears to be an error in the reporter's transcript or Pawlak may simply have misspoken. The first three letters identifying the image in question are "AEA" not "ADA."
Pawlak admitted that, in preparing the police report, he did not describe with any particularity any of the images obtained from the cache files. Rather, he merely described those images as "containing juvenile pornography."
Pawlak also testified that he inadvertently wrote that he observed Graham browsing the images "indiscriminately." He said that was a "typographical error" and that he intended to use "with particularity" or "discriminately." Graham was not "randomly cho[osing]." According to Pawlak, it "seemed as though it was scrolled down and reviewed, find an image of interest, click open, close, scroll down and find an image of interest[,] click open and close."
B. Verdict and sentencing
The jury found Graham guilty of one count of possession or control of matters depicting a person under the age of 18 engaged in or simulating sexual conduct. (§ 311.11.) In a bifurcated proceeding, the trial court found true the allegations that Graham had eight prior strike convictions (§ 667, subd. (b)), as well as two prison priors (§ 667.5, subd. (b)).
At sentencing, the trial court granted Graham's Romero motion as to his 1992 conviction and all but one of his convictions in 1997, leaving him with one strike for purposes of his current sentence. The court then imposed the aggravated term of six years, doubled to 12 due to the strike prior, plus two consecutive one year sentences due to the prison priors, for an aggregate term of 14 years. At a subsequent hearing, the trial court addressed the issue of custody credits and awarded Graham a total of 180 days' custody credits.
Graham timely appealed.
II. DISCUSSION
A. Adoptive admissions
Graham argues that the trial court erred with respect to what was presented at trial as adoptive admissions. He contends the trial court erred in instructing the jury on that legal theory and improperly allowed the prosecutor to argue that his silence in the face of police questioning constituted an adoptive admission.
1. Relevant factual and procedural background
Pawlak interviewed Graham outside the library and a recording of that interview was played for the jury. Pawlak advised Graham of his Miranda rights and Graham agreed to speak with him about his computer use at the library. When Pawlak asked Graham if he believed the images he had viewed on the computer violated his parole conditions, Graham replied, "I don't know. I—I'm not gonna answer that question." The court admitted the audio recording into evidence, without objection.
Defense counsel did not object to admitting the recording into evidence.
Miranda v. Arizona (1966) 384 U.S. 436.
The trial court instructed the jury with CALCRIM No. 357, as follows: "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose." Defense counsel did not object to this instruction.
After the close of evidence, the prosecutor argued to the jury that, in the recorded interview with Pawlak, Graham was not very emphatic in denying that he was looking at "boys, girls, scantily clad women." Graham also did not deny looking at inappropriate images when asked "[h]ow long have you been doing [so]?" but instead replied, "How long have I been out [of prison]?" The prosecutor, after referencing the instruction on adoptive admissions, argued that the jury should consider Graham's responses as admissions. Defense counsel did not object to this line of argument.
We conclude Graham has forfeited these contentions by failing to object on these grounds below. (People v. Tate (2010) 49 Cal.4th 635, 691-692.) However, even if Graham had not forfeited these contentions, they lack merit.
2. Applicable legal principles
In Miranda v. Arizona, supra, 384 U.S. at page 444, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless . . . [p]rior to any questioning, the person [was] warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." In Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), the Supreme Court held that it was a violation of due process to have given a defendant Miranda warnings, but then use that defendant's subsequent silence to impeach an explanation offered at trial. Doyle stands for the proposition that a defendant's invocation of constitutional rights to silence or counsel should not be paraded before the jury, penalizing his express invocation of his rights to silence or counsel. (See Id. at p. 619.) The California Supreme Court has extended the Doyle rule to prohibit the prosecution's use of a defendant's post-Miranda silence as evidence of guilt during the prosecution's case-in-chief. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.)
3. There was no Doyle violation
Graham contends the prosecution violated Doyle by arguing to the jury that his refusal to answer certain questions constituted adoptive admissions. We disagree.
"Doyle did not involve, and neither the United States Supreme Court nor the California Supreme Court has directly addressed, the question of whether the Doyle rule applies to 'selective silence' or 'partial silence' cases like this one where a defendant was advised of his Miranda rights, elected to speak with a police detective, and then responded to some of the officer's questions, but not others." (People v. Bowman (2011) 202 Cal.App.4th 353, 364 (Bowman).)
In Bowman, the defendant "voluntarily spoke with a police detective after receiving Miranda warnings. Although he did not respond to certain questions during the interview, there is no evidence [he] told the detective he wanted to cease all further questioning, asked for an attorney, or otherwise unambiguously indicated he wanted to invoke his right of silence." (Bowman, supra, 202 Cal.App.4th at p. 364.) Under those circumstances, the Bowman court held that Doyle, supra, 426 U.S. 610, was no bar to using the defendant's "selective silence as adoptive admissions." (Bowman, supra, at p. 364.)
Even if we accept Graham's characterization of his statements as silence, there is no right to selective silence in California. (People v. Hurd (1998) 62 Cal.App.4th 1084, 1093.) "Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights." (Ibid.)
4. No instructional error on adoptive admissions
The trial court did not err in instructing the jury on adoptive admissions. In any event, any error in giving the adoptive admission instruction was harmless. Claims that a defendant's right against self-incrimination was violated is reviewed under the harmless beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Earp (1999) 20 Cal.4th 826, 856-858, People v. Hardy (1992) 2 Cal.4th 86, 157.)
Graham's argument that the adoptive admission instruction contributed in some way to the jury's finding of guilt is unsound. In the first instance, the instruction, by its own terms, only applied if the jury found, inter alia, that someone made a statement tending to connect Graham to the crimes and that he would naturally have denied the statement if he thought it was not true. The jury may not have found that the officer's questions constituted accusations that required a denial. The jury was also instructed by the trial judge, pursuant to CALCRIM No. 200, that "[s]ome of these instructions may not apply," and not to "assume just because I give a particular instruction that I am suggesting anything about the facts." Assuming the adoptive admission instruction did not apply, the jury presumably disregarded it.
Even assuming the trial court should not have instructed the jury on adoptive admissions, the evidence adduced at trial demonstrating Graham's possession or control of child pornography at the library that day was strong. In view of the totality of the evidence, we conclude beyond a reasonable doubt the admission of evidence of Graham's "silence" and the prosecutor's reference to it in closing argument did not influence the jury verdict. (Chapman v. California, supra, 386 U.S. at p. 24; see also People v. Delgado (2010) 181 Cal.App.4th 839, 853-854.)
5. No ineffective assistance of counsel
As we have explained above, there was no Doyle violation nor did the trial court err in instructing the jury on adoptive admissions. Consequently, defense counsel's failure to object below did not amount to constitutionally ineffective assistance. "Representation does not become deficient for failing to make meritless objections." (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
B. No prosecutorial misconduct
Graham next claims the prosecution engaged in misconduct by arguing possession of child pornography creates a "marketplace for the exploitation of children." He asserts that these arguments were improper as they were directed to the passions and prejudice of the jury rather than to evidence of his guilt.
1. Comments on rationale for law against possession of child pornography
During final argument, the prosecution told the jury, "when you think about what we're prohibiting here, we're not talking crimes of production or sales or distribution. Those are different crimes. The simple possession of child pornography, possession or control. It's prohibited because it creates a marketplace for the exploitation of children." Defense counsel immediately objected that this was "improper argument." The trial court overruled the objection, stating "[t]he jury will know what the law is and they'll proceed accordingly."
2. The objection was not forfeited
The People claim that Graham forfeited this objection by not timely raising it to the trial court. " 'To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.' [Citation.] . . . Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition." (People v. Panah (2005) 35 Cal.4th 395, 462.)
However, the record is clear that defense counsel immediately, and unsuccessfully, interposed an objection on the grounds of improper argument.
Consequently, Graham's claims of prosecutorial misconduct were preserved for appellate review.
Accordingly, we need not reach Graham's alternative argument that his trial counsel was constitutionally ineffective for failing to properly object below.
3. Applicable legal standards
Alleged prosecutorial misconduct is evaluated under an objective standard. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Price (1991) 1 Cal.4th 324, 447.) "When, as here, the [prosecutorial misconduct] claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable." (People v. Benson (1990) 52 Cal.3d 754, 793.)
" 'It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence . . . . [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' " (People v. Wharton (1991) 53 Cal.3d 522, 567.) An appeal to the jurors' fear at the guilt phase of trial is prosecutorial misconduct (see People v. Pensinger (1991) 52 Cal.3d 1210, 1250) but "[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence." (People v. Ledesma (2006) 39 Cal.4th 641, 726.)
4. Analysis
In this case, the prosecutor's references to the "marketplace for child pornography," while not directly rooted in evidence produced at trial, would not be understood by a reasonable juror as an appeal to his or her passions or prejudice. Presumably every juror has a rudimentary understanding of the basic economic concepts of supply and demand. Advanced knowledge of economics is not required to appreciate the fact that demand for goods, even illicit ones, signals that there is a market for those goods, in turn leading someone to produce more of the goods in question.
Finally, even if the challenged remarks constituted misconduct, we would not reverse the judgment. There has been no claim or showing on appeal that the alleged prosecutorial misconduct rendered the trial fundamentally unfair. (See People v. Cash (2002) 28 Cal.4th 703, 733; Darden v. Wainwright (1986) 477 U.S. 168, 178-181.) Neither does the record demonstrate a reasonable probability that a result more favorable to Graham would have been reached in the absence of the alleged prosecutorial misconduct. (See People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
The prosecutor's reference to the "marketplace for child pornography" made no mention of the burden of proof nor was the reference inflammatory. (Cf. People v. Rundle (2008) 43 Cal.4th 76, 162, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The trial court fully instructed the jury regarding its responsibilities, and "[w]e presume that jurors are intelligent and capable of understanding and applying the court's instructions." (People v. Butler (2009) 46 Cal.4th 847, 873.)
The trial court clearly instructed the jury regarding the applicable legal standards for determining whether Graham possessed or controlled child pornography. It informed the jury that the People had to prove the allegation against Graham beyond a reasonable doubt. The court appropriately defined "reasonable doubt" for the jury. The court told the jury: "In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." The court further instructed the jurors that if they "believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
Consequently, Graham's claim of prosecutorial misconduct fails.
C. No cumulative error
Graham next argues that the cumulative effect of the purported errors discussed above warrants reversal. A claim of cumulative error "is in essence a due process claim." (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Graham "was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) As explained above, Graham has failed to show any prejudicial error that infringed his due process rights, and his claim of cumulative error fails.
D. Sufficiency of the evidence
In a supplemental brief, Graham argues his conviction for possession of child pornography must be overturned because there was insufficient evidence presented at trial that he "possesse[d] or control[led]" the images he viewed on the library computer. There was no evidence presented that he purposely searched for, downloaded or saved any of the images, nor was there any evidence that he "manipulated" the cache or did anything more than merely view the images as they appeared on the screen. We disagree.
"Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, 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 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct . . . is guilty of a felony." (§ 311.11, subd. (a).) "The statutory language reflects a far-reaching intent by the Legislature to cover both traditional means of displaying child pornography and the new era of Internet use in an effort to reduce the exploitation of children." (Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, 1418 (Tecklenburg).)
"By its plain terms, [Penal Code] section 311.11 includes an image of child pornography as it is displayed on a computer screen as an object that can be knowingly possessed or controlled." (Tecklenburg, supra, 169 Cal.App.4th at p. 1418.) Furthermore, "enlarg[ing] . . . images from thumbnail views" or otherwise "manipulating the display of such images" is evidence of possession or control. (Id. at p. 1419.) Whether a defendant knowingly possessed or exerted some control over the images in question or whether those images appeared inadvertently presents a question of fact. (People v. Petrovic (2014) 224 Cal.App.4th 1510, 1517 (Petrovic).) On appeal, we do not reweigh the evidence or decide the credibility of the witnesses, but merely review the entire record in the light most favorable to the judgment to determine whether it is supported by substantial evidence, that which is reasonable, credible, and of solid value such that a reasonable trier of fact could conclude that appellant knowingly possessed or controlled child pornography. (Ibid.)
Here, there is substantial evidence supporting Graham's conviction for possession or control of child pornography. The images preserved in the cache from Graham's computer session is evidence that he used that computer to retrieve and view those images. In addition, Pawlak testified that he directly observed Graham enlarging specific images of child pornography.
Graham further argues that merely viewing an image cannot amount to "possession" much as simply looking at a painting in an art gallery does not put the viewer in possession of that painting. This argument overlooks the fact that section 311.11 prohibits "possession" or "control." Intentionally seeking out child pornography and making it appear on a computer screen constitutes control within the meaning of section 311.11. (Petrovic, supra, 224 Cal.App.4th at p. 1516.) It is not necessary that Graham also have the capability of somehow preserving those images, on paper or electronically, for his future use.
E. Custody credits
Graham argues the trial court erred by denying him credits for four distinct periods: (1) July 27, 2011 to January 23, 2012—the period of time he was in custody solely on the parole violation; (2) January 24, 2012 to April 14, 2012—the period of time he was in custody on both the parole violation and on the sexually violent predator (SVP) hold; (3) April 15, 2012 to July 10, 2013—the period of time he was in custody solely on the SVP hold; and (4) July 11, 2013 to October 2, 2014—the period of time he was in presentencing custody on both the SVP hold and for the instant offense. In all, Graham contends he is entitled to 1,614 days of credit, rather than the 180 days awarded by the trial court.
The People, in addition to disputing that Graham is entitled to any additional custody credits, argue that he is not even entitled to the 180 days he received at sentencing.
1. Relevant facts and procedure
Graham was arrested on July 27, 2011, the day of the incident at the library. Based on the conduct leading to his arrest, his parole was revoked and he was sentenced to 180 days in state prison on that parole violation. As of January 9, 2012, Graham had completed that 180-day sentence.
On January 10, 2012, the district attorney filed an SVP petition to determine if Graham met the relevant criteria. At the time, Graham was still in custody at San Quentin State Prison and, on January 19, 2012, the trial court made a preliminary determination that he should remain in custody pending trial on the SVP petition. Graham was denied bail on the SVP petition on January 24, 2012.
The complaint in the instant criminal proceeding, stemming from his conduct at the library, was filed on July 9, 2013. At a bail hearing two days later, the trial court set bail at $150,000. Graham was ultimately sentenced on October 2, 2014, on the charge of possession or control of child pornography. On October 28, 2014, the question of custody credits was litigated and the trial court awarded Graham a total of 180 days of credits "pursuant to the time served on [his] parole violation."
2. Applicable legal standards
Section 2900.5 requires that a defendant receive credit for each day in presentence custody against his or her term of imprisonment. (Id., subd. (a).) But "credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (Id., subd. (b).) Consequently, "[a] defendant is entitled to credit for presentence custody only if he shows that the conduct that led to his conviction 'was the sole reason for his loss of liberty during the presentence period.' " (People v. Mendez (2007) 151 Cal.App.4th 861, 864.) Graham has the burden, "as the party claiming credit, to demonstrate his entitlement to credit" for any particular period. (People v. Huff (1990) 223 Cal.App.3d 1100, 1106.)
The California Supreme Court has recognized that "there is no simple or universal formula to solve all presentence credit issues" but the "aim is to provide for section 2900.5 a construction which is faithful to its language, which produces fair and reasonable results in a majority of cases, and which can be readily understood and applied by trial courts." (In re Joyner (1989) 48 Cal.3d 487, 495 (Joyner), accord People v. Bruner (1995) 9 Cal.4th 1178, 1195 (Bruner).) "As with many determinations of credit, a seemingly simple question can reveal hidden complexities. Although the statutory language in section 2900.5 'may appear to have meaning which is self-evident, the appellate courts have had considerable difficulty in applying the words to novel facts.' [Citation.] 'Probably the only sure consensus among the appellate courts is a recognition that section 2900.5, subdivision (b), is "difficult to interpret and apply." [Citation.] As [the California Supreme Court has] noted, in what is surely an understatement, "[c]redit determination is not a simple matter." ' " (In re Marquez (2003) 30 Cal.4th 14, 19.)
In Bruner, supra, 9 Cal.4th at pages 1194 through 1195, the court discussed the application of section 2900.5, subdivision (b). The defendant sought presentence credit on his prison term for cocaine possession where he had served presentence custodial time for a parole revocation based on the same cocaine possession as well as based on absconding from parole supervision, a dirty drug test, and theft of a credit card. The court held, consistent with two prior cases—In re Rojas (1979) 23 Cal.3d 152 and Joyner, supra, 48 Cal.3d 487—that "where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was 'a' basis for the revocation matter as well." (Bruner, supra, at pp. 1193-1194.) Under this " 'strict causation' " standard, no credit is allowed "unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody." (Id. at p. 1192.)
3. Analysis
The People argue that the trial court erred in awarding Graham any credit for the time served on his parole violation because his parole was revoked, in part, on grounds unrelated to his subsequent conviction for possession of child pornography. The People urge this court to revoke Graham's 180 days of credit, contending that "[a] miscalculation in presentence custody credits results in an unauthorized sentence that may be corrected whenever discovered," citing People v. Taylor (2004) 119 Cal.App.4th 628, 647. We decline to do so, because the People fail to cite to any part of the record supporting their assertion that Graham's parole was revoked on grounds unrelated to his subsequent conviction. (Cal. Rules of Court, rule 8.204(a)(1)(C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) If, as the People contend, Graham's parole was revoked for looking at adult pornography, either alone or in combination with child pornography, the trial court may have erred in awarding credit for those 180 days. We see no reason why the People should not apply to the trial court in the first instance to correct the unauthorized sentence.
The People cite to portions of the reporter's transcript from Graham's trial describing what he was looking at on the library computer, but that evidence tells us only what might have been the basis for Graham's parole revocation, not the actual basis of that revocation.
Turning to Graham's claim for additional credits, we find that he has not established his entitlement for credits for time served during the period between completing his sentence on the parole violation (January 9, 2012) and the day he was sentenced for possession of child pornography (October 2, 2014). During that period, the possession of child pornography case was not the "only unavoidable basis for the . . . custody." (Bruner, supra, 9 Cal.4th at p. 1192.) Graham was in custody, without bail, pending the disposition of the allegations that he was a sexually violent predator as defined in Welfare and Institutions Code section 6600, i.e., that he had been convicted of a qualifying sexually violent offense and has a diagnosed mental disorder which makes him a danger to others.
Possession of child pornography is not a qualifying offense for purposes of the sexually violent predator evaluation, and therefore his pending criminal proceeding for that offense could not provide a basis for the sexually violent predator petition. (Welf. & Inst. Code, § 6600.) As a result, Graham was not entitled to credit for the time he served pending his sexually violent predator evaluation. (Bruner, supra, 9 Cal.4th at p. 1183.)
We also reject Graham's claims that failing to award him custody credits for this period violates his constitutional right to equal protection. He argues that the prosecutor's delay in filing the charges in the present case is analogous to the prosecutor's delay in bringing a speedy trial pursuant to section 1381. The analogy is flawed.
Section 1381 requires the prosecutor to bring a case to trial within a certain time frame once charges have been filed. The statute does not prescribe a time limit by which a prosecutor must file charges after a criminal act is discovered. That circumstance is addressed in the applicable statute of limitations for a specific offense.
Graham's argument that he received disparate treatment ignores the fact that any other similarly situated defendant would also have remained in custody without bail pending a sexually violent predator evaluation during the period before criminal charges were brought. (See People v. Mendez, supra, 151 Cal.App.4th at pp. 864-865.) His confinement during that period was not exclusively based upon the filing of charges for possession of child pornography and neither he nor a hypothetical defendant would have been entitled to presentence custody credit.
F. Clerical errors
The People concede that there are clerical errors in the abstract of judgment, specifically that the abstract incorrectly states that Graham suffered four prison prior convictions within the meaning of section 667.5, subdivision (b). Graham was alleged and found to have only two such convictions.
In addition, the trial court found that Graham had eight prior strike convictions (§ 667, subd. (b)), but at sentencing granted Graham's Romero motion and struck seven of those prior strikes. The abstract of judgment fails to reference the remaining prior strike.
We agree that the concession is well taken and will direct the trial court to modify the abstract of judgment accordingly.
III. DISPOSITION
The judgment is modified to reflect that the defendant suffered two prison prior convictions (Pen. Code, § 667.5, subd. (b)) and one strike prior conviction (Pen. Code, § 667, subd. (b)). The clerk of the superior court is directed to prepare and submit to the Department of Corrections and Rehabilitation a new abstract of judgment reflecting these modifications. As modified, the judgment is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Mihara, J. /s/_________
Grover, J.