Opinion
A147691
04-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GRANDVILLE KELSO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH-57257)
Robert Grandville Kelso (appellant) appeals from a judgment entered after a jury convicted him of attempted contact with a minor with intent to commit a sex crime (Pen. Code, § 288.3, subd. (a) ), attempted distribution of harmful matter to a minor (§ 288.2, subd. (b)), and arranging or attempting to arrange a sexual meeting with a minor (§ 288.4, subd. (b)). He contends the trial court abused its discretion and violated his right to due process by admitting into evidence text messages taken from his cell phone and a forensic report relating to images and videos taken from his computers. We reject the contention and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2015, an information was filed charging appellant with attempted contact with a minor with intent to commit a sex crime (§ 288.3, subd. (a); count 1), attempted distribution of harmful matter to a minor (§ 288.2, subd. (b); count 2), and arranging or attempting to arrange a sexual meeting with a minor (§ 288.4, subd. (b); count 3). A jury trial began on October 5, 2015, but ten days later, the trial court declared a mistrial, and a new trial began on October 19, 2015.
On April 24, 2014, Alameda County Sheriff's Detective Keith Lydon was conducting a search for potential predators on Craigslist's "casual encounter section" as part of his investigation of internet crimes against children, when a listing caught his attention. The listing described a "34-year-old male seeking a young, college-aged woman" and said in part, "I'm a normal, single professional white male looking for a cute, sexy college young hottie for NSA [no strings attached] fun." "I am laid back, 5'7", 145 pounds, slender, sane, have a sarcastic sense of humor, and I am very open in bed. I am also 420 [marijuana] friendly." "I live alone in Oakland near Piedmont and can host. I am clean, disease free, and not a stalker. I am just looking for some hot and kinky fun." Lydon responded to the listing using Craigslist's anonymous email system, posing as a 14-year-old girl named Sabrina Lee. Over the course of the next week, "Sabrina Lee" communicated with an individual who was later identified as appellant.
Lydon used the nickname "Beany" and wrote, "Hi mi nam is Beany. [Happy face emoticon.] Whut is yurs?" Lydon used "shorthand language" and emoticons in his messages so he would sound like a 14-year-old girl. Appellant responded, "I'm Rob. [Happy face emoticon.] What are you up to?" The next day, appellant contacted Sabrina again, asking what she was doing. Sabrina responded, "Juss got back from da mall . . . I bot a sexy fit . . . u?" Appellant asked Sabrina how old she was, and added, "We should meet up tonight." Sabrina responded, "Ima gonna b 15 soon. U?" Appellant responded he was going to be 35 soon, and asked Sabrina where she lived.
Sabrina responded, "I lik older guys LOL [laugh out loud]. . . [Wink emoticon.] Im from castro valley whats ur fav position." Appellant responded, "I love girl on top and missionary What are your favorite positions??" Sabrina wrote, "LOL both sound lik fun. [Happy face emoticon.]" Appellant wrote, "We should try both. What do you look like? What are you doing right now?" Sabrina described herself as "tall thin [with] black hair and in good shape," said she was at her mother's house, and asked, "wat will u be teaching me. [Wink emoticon.]" Appellant responded, "I will teach you anything you want! [Happy face emoticon.] I like to make out and touch, I also love going down on a girl. Where is your moms house?" Sabrina responded: "Sounds lik fun!! Never had anyone do dat 2 me. [Wink emoticon.] In tha hills near cull canyon . . . so were do u liv?" Appellant said he lived in Oakland and wrote, "Could you meet? I'd love to see your pic!"
Sabrina responded that it was "lame" that her mother had told her to work on her book report. She asked appellant for his email address, and he responded it was ROBK510@yahoo.com. He also wrote, "It's Saturday you cant do school work!!! You should be having fun! Can I text or call you?" Sabrina said her mother grounded her and took her phone away for skipping school, and that she was stuck using a "dumb tablet" to communicate with appellant. Appellant asked for Sabrina's email and she responded it was "Sbinas1999@gmail.com.
Appellant wrote, "Send me your pic. [Happy face emoticon.] Can we talk on cam?" "Let's meet somewhere!" Sabrina sent appellant a picture from 1997 that depicted Alameda County Sheriff's Deputy Laurina Holt as a 14-year-old. She asked, "[R] u clean?" Appellant wrote, "You are beautiful!!! Yes I'm clean. [Happy face emoticon.] Are you? Are you on birth control? Let's meet up." Sabrina responded that she is clean but that her mother thinks she is too young to "be on the pill . . . she is sooo lame!! . . . u have condoms LOL." Appellant responded, "You are so hot, lets meet now. I have cond[o]ms but don't mind risking it. [Wink happy face emoticon.] I want to lick you. [Happy face emoticon.]"
Sabrina responded that her mother had her "on lock down" but that "maybe dis week I can cut skool and meet up. [Happy face emoticon.] Wat will u do 2 me. [Wink emoticon.]" Appellant responded, "We will do whatever you want. [Happy face emoticon.] Sneak out and lets be so kinky tonight, I want to make you cum hard on my cock. . . Can you sneak out? [Happy face emoticon.]" Sabrina responded, "Cant. If u get caught I will never get mi phone back. [Sad face emoticon.] You have a pic?" Appellant asked to see another picture of Sabrina and wrote, "Sneak out! I bet you can, even for just a little bit." Sabrina responded that it would be better to "meet up . . . durin skol cuz I can cut n no one will know. . . ." Appellant continued to ask Sabrina to "[s]neak out for the night," and added, "I want to lick your pussy tonight! Let's meet." Sabrina told appellant that her mother was yelling at her and that she needed to go. Appellant wrote, "Don't go. . . We need to meet so I can lick you."
The next day, appellant wrote to Sabrina three times to ask how she was doing and where she was, before Sabrina responded, "Hey! Mi day waz good mi moms took me to sf. . . howz ur day bben?" Appellant asked when they could meet, and Sabrina responded, "Hey! I go to castro valley High n can cut skool after lunch s dat kool???" Appellant wrote, "That's cool. [Happy face emoticon.] Could we meet tonight?? Can I see another pic of you hottie? [Happy face emoticon.]" Sabrina sent a picture of 14-year-old Sheriff's Deputy Laurina Holt sitting on a bed holding a stuffed animal. Sabrina also asked for appellant's picture. Appellant sent a picture of himself and wrote, "You are so cute and sexy!!! Here. [Happy face emoticon.]" He wrote that he was thinking about Sabrina and wanted to see her "right now!" Sabrina responded that she wanted to see him but that "moms is yelin at mi to get offline."
The next day, appellant wrote, "Hi there. [Happy face emoticon.] What are you up to??" Sabrina wrote, "Hey you! Wnet 2 skool 2day. [Sad face emoticon.] I hate CVHS [Castro Valley High School]! Everyon is retarded!! Wat r u up too sexy!" Appellant wrote, "I'm thinking about you! I want to see you! Let's meet right now. [Happy face emoticon.]" He then wrote, "Where are you now? I want to see you so bad." He wrote a third time, "I am so turned on from your pic. [Happy face emoticon.] I want you. [Wink emoticon.]" He wrote a fourth time, "What are you up to sexy? [Happy face emoticon.]" Sabrina finally responded with, "LOL!! [Heart emoticon.] I been thinkn abut wat were gonna do. [Happy face emoticon.] im juz doin homework. [Sad face emoticon.]"
That evening, appellant wrote, "Sneak out tonight! Like right now. [Happy face emoticon.]" Sabrina reiterated that she wanted to meet during school hours, and asked, "Were you wanna meet?" Appellant wrote, "Where would [be] good for you to meet? Sneak out! I bet you could do it. [Happy face emoticon.] Lets be really bad tonight." Sabrina responded, "I lik how bad u r!!! Do you lik mi shaved. [Wink emoticon.]" Appellant responded, "I love that you are shaved, perfect for licking. [Happy face emoticon.] I want to lick you tonight! Can you show me a picture of you shaved??" "I want you so bad. [Happy face emoticon.] Find a way to sneak out!" Sabrina said, "U r gonna hav to wait n seeeeeeeee. [Happy face emoticon.]" Appellant wrote, "MMMMM I am really hard for you right now sexy." Sabrina wrote, "U rrrrrrr???" Appellant responded, "Very very hard. Where . . . do you live? Maybe I can meet you down the street and we can fool around."
Sabrina responded with a sad face emoticon and wrote, "Cant tonight." Appellant wrote, "Mmmm lets talk on cam then, I want you so bad, lets do so many kinky things." Sabrina suggested, "how abut thurs?" Appellant responded, "Yesssssss and tomorrow too. . . Find a way tonight! Make up a reason you need to leave for a little bit or just pretend you aren't feeling well and go to bed early, but sneak out and let me lick your little pussy." Sabrina responded, "OMG Bad Boy!!! U r gonna hav to wait." Appellant wrote, "Are you feeling horny right now? Your little pussy needs my hard cock and hot cum deep inside you." Sabrina responded, "ttthhhuuurrrssddaayyy!" Appellant wrote, "Kmmmmmm I am so hard for you, I can't wait . . . I want to fuck you bare, cum deep inside you. Stay with me this weekend." Sabrina wrote, "U r soo bad! Wats ur fav condm?" Appellant wrote, "The thinnest ones I can find. . . But I am clean and no condom is much hotter!" Sabrina responded, "Prego s no good bring da skinn ones." Appellant wrote, "We can get the morning after pill if you want. [Happy face emoticon.] I can't wait to lick you too." The last message that night was from Sabrina to appellant, stating, "Noooooooooo. . . Nit nit!!"
On April 30, 2014, Sabrina and appellant corresponded about meeting the next day. Appellant gave her his phone number, and Sabrina responded that her mother still had her phone, and that she would try to borrow a friend's phone. Later that day, Sabrina wrote, "Com meet mi down da blok from cvhs [her high school] at da Bonfare store [a super market]." Appellant wrote, "Okay! Can you still try to call me???" Sabrina wrote, "Mi friend wont let me hav it n I don't wanna tell her wazzup. I cant wait to finally meet you." Appellant wrote, "It should take 30 minutes to get there maybe less. [Happy face emoticon.] Try to call me still. [Happy face emoticon.] Say you want to try calling your mom or someone." Sabrina wrote, "OMG I cant wait!!! U know were the Bonfare Market is???" Appellant wrote, "Almost there. [Happy face emoticon.]" "Where will you be? Where should I meet you? [Happy face emoticon.]" Sabrina wrote, "R u there? im a cupl blks away. . . can you get condums and some reeses peeces plessse. [Happy face emoticon.]" Appellant responded, "Okay. [Happy face emoticon.]"
Appellant was arrested at the Bonfare Market parking lot. Thereafter, Lydon executed a search warrant for appellant's residence and seized a Samsung computer and an Apple computer from the home. Michelle Dilbeck of the Alameda Sheriff's Department extracted 700 pages of text messages from appellant's cell phone, and the messages were admitted into evidence.
Alameda County District Attorney's Office Inspector Michael Carter testified as an expert in computer and cell phone forensics. Carter examined the Samsung and Apple computers that were seized from appellant's home and used FTK Imager to produce a report that was identified as People's Exhibit 9. Carter searched for relevant images on appellant's computers and identified "24 or so images" taken from the Samsung computer "that might be associated with child pornography." One image "depicted a female that was in her teenage years that might be engaged in sexual activity." Another image depicted a "young girl" in a bikini that showed the "outline" of her vagina. Carter also found video files. A 30-second video depicting a "teenage girl engaged in sexual activity" was played for the jury. Two other videos were played in court depicting "some type of teen erotica."
Carter used the BlackLight software program to examine appellant's Apple computer and found videos with the titles "ESP, PTHC rare new incest bare daddy and daughter" and "Little Lupe 18." He found "30 files or so in unallocated space." Examination of the "cookie Safari Internet Log" showed that appellant searched the websites "younghotporn.com" and "Xxxteenvids.com." A search revealed that the "FrostWire search database"—which allows peer-to-peer sharing of files—had been downloaded onto appellant's Apple computer. Appellant did not share his files on the FrostWire database but used it to view files from other linked computers. The following child pornography-related items appeared as a result of a search that had been conducted on the FrostWire database: "New PTHC 2006 Tara 7 Year Ass Rape"; "KLEUTERKUTJE"; "8 Year Old Boy Butt Fucks 11 Year Old Girl PTHC new neighborhood"; "PTHC New Awesome 2011 12 Y Wet"; "12 Year Girl Nude Huge Pussy Stick Cam, Web Cam, Fully Naked"; "Annie 10 Hussy Fan FTHC Vickie 7 YO and 10 YO, 69, pedo, child porn no, Lolita"; "R@aygold, dash, child porn, sex 10 Y girl." One image was associated with the following file name: "PTHC, PTSC, priceless, private, stolen sister, young teen, model, daughter, QSH EXHIV, amateur girlfriend." Carter downloaded only a "representative sample," but in all, found "hundreds" of similar results. Carter also found items on the Apple computer that appeared to be incomplete previews of pornography involving girls from the ages of 7 to 12.
Carter testified that PTHC is an acronym for "preteen hardcore," that PTSC translates to "preteen softcore," and that "hussy fan," "Nakie, number 2," "Kingpass," "Kleuterkutje," "pedoland," and "Ygold" are keywords related to child pornography.
On cross-examination, Carter testified that he could not determine that either of appellant's computers contained child pornography; he determined only that "there were files that appeared to" depict "teenagers." Carter never tested whether the child pornography search results would appear if a person was searching for adult pornography. He also did not find any adult pornography on the Apple computer.
Appellant testified he was 36 years old and employed as "an office manager in IT" for an ankle and foot surgeon. He testified that the pornography contained in People's Exhibit 9 amounted to only "one half of one percent" of the total one gigabyte of material taken from both computers. The three videos played by the prosecutor at trial featured two female performers who were 19 years old—Lupe Fuentes and Dakota Sky. Appellant explained that he searched for pornography on "mainstream" websites by the name of favorite performers or by movie title, and that these websites did not offer child pornography. He also used FrostWire, which is a "peer-to-peer sharing software" that allows people to share their files with each other. He came across the acronym PTHC "[w]hen I first saw it downloading the videos," but he did not know that PTHC stood for preteen hard core, and thought it was the person's username.
Appellant testified that he never searched for—or had any interest in—child pornography, and did not have any "sexual gratification . . . from looking at girls under the age." The majority of the type of pornography that was on his collection "were of the fantasy role-play variety" and "lesbian pornography." Role-play to him was "a fun, escape kind of, just kind of spiced-up, you know, the bedroom, just a fun kind of whatever you want to play, we can play, whether it's the traditional daddy-daughter, teacher-student, naughty secretary, whatever you like role-play. It's just naughty talk role-play." The majority of time, appellant assumed the "daddy" role.
Appellant testified that he viewed pornography when he was bored, while ingesting marijuana, or to cope with depression, loneliness, and stress from work. He viewed pornography less often whenever he was in a relationship with an adult female. He never involved any minors in any of the "role-play dialog," and the role-playing was always with an adult female.
Appellant was familiar with some of the 24 images or videos the prosecution had mentioned. Some had been sent to him by women he "dated or conversed with" on online dating sites such as match.com, plentyoffish.com, and harmony.com. Appellant explained that these women had children, and had "sent me pictures of their child." Photographs of teenaged girls came from an adult female with the username "U-know" with whom he had engaged in "taboo daddy-daughter" role playing that expanded to "threesome type of role-playing" with a fictional daughter. Appellant told U-know that he did not want to act out the role-playing, and would meet her for drinks only. Appellant received photos of U-know's daughter.
As to his Craigslist ad, appellant testified that he was seeking relationships with adult, college-aged women. He suspected Sabrina was an adult, and "most likely" a male. He found Sabrina's language-use was "contrived" and "too youthful." He asserted that Sabrina's claimed age of 14, use of email, and use of the term "offline," were all suspicious circumstances that tended to show Sabrina was not a minor, because teenagers prefer social media over email, and because "offline" is a dated term. Sabrina's photos were low resolution, scanned images with "muddled colors." The photos received seemed to be taken in the 1990's, suggesting to appellant that Sabrina was in her late twenties or early thirties. Sabrina refused invitations to "voice verify" by talking on the phone or using a cam video conferencing system. Sabrina suspiciously claimed to have been "grounded" by her mother and not able to use her cell phone, yet she still had use of her tablet. Sabrina's excuses were consistent with role play by a "fat gamer dude" who did not want to break the role playing with a cam conversation.
Appellant also suspected that Sabrina was not actually attending high school because she began to converse with him at 2:20 p.m. on a weekday, when school was presumably in session. He suspected that Sabrina was an "overweight" male "laughing at" appellant, or a woman who was appellant's age. Appellant agreed to meet Sabrina at the Bonfare Market parking lot to settle whether she was a "real" woman. After arriving at the parking lot, he thought, "I'm definitely being messed with because there's nobody here." He drove off, and was pulled over by police.
Appellant testified that he never had any intent to orally copulate a minor, and that he had no "unnatural or abnormal sexual interest" in children. "[N]ot once" did he "consider [that Sabrina] was a minor." Instead, as he sent his messages, he believed he was communicating with an adult, and was "contemplating the possibility that it might arouse some sexual appetite in the person who is receiving these text messages." If he had known a minor had been involved, he would have "[s]topped everything immediately."
John Patty, Ph.D., a psychologist trained to evaluate paraphilia, testified as an expert in the area of sexual interest in minor females. Patty first examined appellant on August 29, 2014, and spent a total of 32 hours in therapy with him. Patty opined that appellant "does not have a paraphilia, nor the subcategory of paraphilia, which is pedophilia." Patty opined that appellant is not attracted to minors. Appellant reported engaging in "fantasy role-playing between adults, either talking as if one or both are younger." Initially, Patty did not consider the police report in this case or the computer messages introduced as evidence because they were not "pertinent to the therapy." Patty testified that his review of the sampled messages selected by the prosecutor did not cause him to change his opinions.
A jury found appellant guilty as charged. The trial court suspended imposition of sentence and placed appellant on probation for five years on various conditions including that he serve 90 days in county jail.
DISCUSSION
Appellant contends the trial court abused its discretion and violated his right to due process by admitting into evidence text messages taken from his cell phone and a forensic report relating to images and videos taken from his computers. We reject the contention.
Background
Citing Evidence Code, sections 1101, subdivision (b), and 1108, the prosecutor sought a pretrial ruling admitting text messages from appellant's cell phone that relate to him communicating with others regarding role playing among other things, as well as data from appellant's computers to show "intent as well as motive, plan and knowledge to commit the acts charged." Defense counsel objected on the ground that the evidence was irrelevant and not probative of appellant's intent.
The trial court ruled it was going to allow the text messages and computer data into evidence. As to the text messages, the court stated, "I do understand there's an element of what Mr. Dosa [defense counsel] called role playing or fantasizing; however, a number of the statements dealt with the youth or age of the females. I would find that really highly relevant in this particular case. I would find that any relevant evidence is prejudicial; however, I do not find it unduly prejudicial. This was said very close in time to the factual basis that's alleged in this case and I would find that the probative value outweighs prejudice. [¶] I understand this is over strenuous defense objection; however, I believe truth in evidence. I want the facts to get before the jury so the jury can make an intelligent decision. . . . I'm inclined to allow these messages in." The court continued: "Mr. Dosa had indicated that if that was the Court's ruling, he wanted the entire document in, which is I believe 700 pages [of text messages]. I agree out of the rule of completeness that Mr. Dosa would be correct and I would be inclined to allow all the 700-whatever pages in evidence so they can't be quoted out of context."
As to the data taken from appellant's computers, the trial court stated, "Mr. Chin [prosecutor] was also seeking to have admitted certain photographs or video evidence. Apparently, that has just been . . . distilled out of the computer or laptop . . . and I have requested that Mr. Chin show Mr. Dosa any video or photographic evidence he would seek to introduce, then I would have a final ruling on that. [¶] Mr. Dosa also made an objection that this . . . would be late discovery. I'm going to let both counsel make a record on this basis. . . . Mr. Chin, did you want to supplement [the] record?"
The prosecutor responded, "Yes. I do believe that [the text messages and computer data] do not only go to the defendant's intent and motive, but also goes to lack of or any absence of mistake that he may have had. I believe that in the jury instructions, that in one of the counts it does say that the defendant is required to either reasonably know or make an effort to attempt to reasonably know the age of the person who he is talking with. I do believe that text messages, as well as the computer downloads, do indicate his intent and absence of mistake, in terms of his understanding of the age or who he believed the age to be of Sabrina. [¶] I would say . . . with regards to the computer downloads, the defense has been provided a copy of the entire analysis of the computer download. On this specific document, there is nothing that hides the fact that . . . a number of images were bookmarked off of the computer . . . Some of those videos, the analysis or the forensic person had taken pictures or images of these specific videos. Specifically in the analysis, he also puts the names of the videos that he had downloaded or he suspected that might be relevant to the investigation of this case."
The prosecutor continued, "There were two different computers that were listed on here, both of their analysis were provided to defense counsel. I just received the DVD last week and I actually thought the defense received it as well because [defense counsel] also said he had . . . sent this forensic report . . . to Dr. Patty already. I will make a copy for him today and I do believe he does have a substantial amount of time to review it if he hasn't already."
Defense counsel stated, "The several statements that are the most provocative statements of my client in the 7 or 800 pages of e-mails, slash, text messages, they're all [provocative] and they are extending over many, many months before the particular incident that we have that's to be addressed at this trial. I don't think that has any connection or relevance. It is all in the context of role playing. If it's all role playing with people that he knows are adults, then there's no indication that it's somehow going to magically become that he's going to find somebody to do the things they talk about in role playing. That's why I don't think it's relevant and I do think it's prejudicial. . . ."
When Carter testified at trial regarding the images and videos that were shown to the jury, and about select titles of other images found on appellant's computer, defense counsel raised only one objection—based on lack of foundation—which the trial court overruled. At the close of the prosecutor's case-in-chief, the court stated it was admitting People's Exhibits 9, 9-A, and 9-B—the forensic computer results totaling 900 pages—into evidence. Defense counsel objected, arguing lack of relevance. He stated, "I will just add one additional thing and this is the disk that we just addressed with [Carter], the question that comes to my mind is since . . . the information was made available to show Mr. Kelso was exploring child pornography or the minimum, child erotica kinds of things and it would show motive. In light of the testimony where [Carter] said he found no pornography, I would wonder if it should be include[d] at all. I would therefore query whether it should be [admitted] and I would oppose it on that basis."
The trial court responded, ". . . I want to give both sides enough room so they can try their case to the best of their ability. I understand the Rules of Evidence, but I feel this. I would rather error more on letting both sides present what they feel is relevant evidence. Apparently you're going to be able to establish two of the participants of these videos were adults at the time in some fashion." Defense counsel stated, "Correct." The court continued, "If they are adults, I would find it relevant because they appear to look like very young ladies, whether that means 18, 17, 16, whatever it is, I really think that's up to the jury to determine and how much relevance and importance they would put on these facts. Also, the fact that at least one of them was labeled a preteen hardcore, whether that's a misrepresentation or that had some effect on Mr. Kelso. These are really factual determinations by the jury. [¶] I understand this is somewhat complicated because the charges in this case are somewhat specific; however, I would find them to be relevant. Mr. Chin does have the burden of proof. It is beyond a reasonable doubt. Once again, I feel my job as the judge is to have both sides put their evidence on, give them the law, and let the jury make the decision. I'm willing to stand by my rulings. I am going to allow all the exhibits into evidence."
Discussion
"Evidence that a person committed a crime, civil wrong, or other act may be admitted [ ] not to prove a person's predisposition to commit such an act, but rather to prove some other material fact, such as that person's intent or motive." (People v. McCurdy (2014) 59 Cal.4th 1063, 1095, citing Evid. Code, § 1101, subd. (b).) Even when relevant, evidence of other acts may be excluded "if its probative value is substantially outweighed by the probability that its admission will be unduly prejudicial." People v. McCurdy, supra, 59 Cal.4th at p. 1095, citing Evid. Code, § 352.) " 'Prejudice', as used in Evidence Code section 352, is not synonymous with damaging. [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial." (People v. McCurdy, supra, 59 Cal.4th at p. 1095.)
In particular, evidence of sexual images possessed by a defendant has been held admissible to prove his intent under certain circumstances. In People v. Memro (1995) 11 Cal.4th 786, 812-813, for example, the Supreme Court held the trial court properly admitted into evidence the defendant's magazines containing sexually explicit material relating to prepubescent and young adult males, where the defendant was accused of escorting a seven-year-old victim to his apartment with the intent of taking photographs of the victim in the nude, and strangling him and attempting to sodomize his dead body after the victim tried to leave. "[T]he photographs, presented in the context of defendant's possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction. [Citation.] The photographs of young boys were admissible as probative of defendant's intent to do a lewd or lascivious act with [the victim]." (Ibid.)
We review the trial court's admission of evidence for abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74.) An abuse of discretion occurs when the trial court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) A trial court's exercise of discretion under Evidence Code, section 352, will be upheld under most circumstances. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)
Here, text messages relating to role playing and pornography-related images and videos from appellant's computers had great probative value. The crimes with which appellant was being charged required the prosecutor to prove that appellant possessed specific intent as to each count, i.e., that he intended to engage in oral copulation with a minor (§ 288.2), intended to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or of the minor (§ 288.2), intended to commit a sex crime (§ 288.3), or intended to engage in lewd or lascivious behavior (§ 288.4). The text messages were exchanged close in time to when the offense occurred, and the videos and images were taken from computers that were seized from appellant's home. The admitted evidence showed that appellant was sexually aroused by communicating about—or viewing images or videos of—sexual contact between adults and female teens or underage girls, and supported an inference that he sought to gratify those sexual desires by exchanging sexually explicit messages with a 14-year-old girl and arranging to meet for sexual contact. The evidence was highly relevant to show appellant's motive, intent, and lack of mistake in engaging in unlawful conduct.
The evidence was also not unduly prejudicial. Appellant claims the text messages and data were "highly inflammatory" and had "shock value" because they made numerous references to daddy-daughter "incest" and mentioned acts with children who were notably younger than the "post-pubescent teenager" (Sabrina) involved in this case. He also complains that the prejudicial effect was exacerbated by the fact that the prosecutor cross-examined him extensively regarding his attraction to underage girls by repeatedly referring to the computer images and videos.
The record shows, however, that the daddy-daughter references related to appellant's fantasies about playing the role of an older male with a young, underage female sexual partner—the very type of attempted conduct with which appellant was being charged. Thus, the text messages were not shocking or likely to inflame the passions of the jury as compared to appellant's conduct in connection with the charged offense. Moreover, there was a wide variety of images, videos and search terms found on appellant's computers involving a broad range of age of girls, as young as seven, ten, and 12, and as old as 19. Although there was mention of terms relating to girls younger than Sabrina, none of the videos that were shown to the jury involved any prepubescent girls, and in fact, portrayed 19-year-old women. There is no indication the jury was shown any videos of girls who were much younger than Sabrina. In light of the highly relevant nature of the evidence—all of which negated appellant's claim that he had no sexual interest in underage girls—the images and search terms relating to the prepubescent girls were not so unduly inflammatory that they should have been excluded. As to appellant's complaint regarding the prosecutor's repeated references to the admitted evidence on cross-examination, we note that appellant's denials opened the door to direct impeachment with evidence of the text messages, images, and videos.
To the extent appellant claims the evidence—consisting of 700 pages of text messages and a 900-page-report—was too voluminous, or that the trial court should have weighed the probative value against the prejudicial effect of each message, image, or term, we conclude he has he has forfeited the claim because he did not raise any specific objections below. (Evid. Code, § 353; People v. Cowan (2010) 50 Cal.4th 401, 476-477 [blanket motion to exclude all postmortem photographs of the victims did not preserve for review the claim that the trial court should have weighed the probative value against the prejudicial effect of each photograph].) In fact, appellant requested that the text messages be admitted in their entirety, and did not object to any specific portion of the report.
Finally, we reject appellant's claim that the evidence that was admitted was so pervasive and so infected the trial with unfairness as to deprive him of his constitutional right to a fair trial and due process of law. "The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.' [Citation.] As [appellant] provides no elaboration or separate argument for these constitutional claims, we decline to address further these boilerplate contentions." (People v. Hovarter (2008) 44 Cal.4th 983, 1010.)
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------