People v. Leith CA3 ( 2014 )

Filed 5/13/14 P. v. Leith CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C068237
Plaintiff and Respondent, (Super. Ct. No. 09F06020)
v.
TRAVIS WADE LEITH,
Defendant and Appellant.
Defendant Travis Wade Leith claims insufficient evidence supports his
convictions of possession of child pornography (Pen. Code, § 311.11, subd. (a)),1 sexual
exploitation of a child (§ 311.3, subd. (a)), and unlawful use of a concealed camera (§
647, subd. (j)(3)(A)). He also asserts the trial court erred when it did not on its own
1 Undesignated section references are to the Penal Code.
1
motion take permissive judicial notice of a civil complaint filed by the victim,
purportedly limiting his ability to impeach the victim. In addition, he contends the court
abused its discretion when it ordered him to submit to GPS electronic monitoring for the
term of his probation.
We reject defendant’s contentions and affirm the judgment.
FACTS
The victim, B.R., lived with her mother and defendant from when she was seven
years old until she was about 15. The mother and defendant were in a relationship.
Defendant was a father figure to B.R. She looked up to him, called him “dad,” and loved
him. The family lived in a home on Bristol Plaza Way (first home).
When B.R. was approximately 15 years old, her mother and defendant ended their
relationship. B.R. and her mother moved into an apartment, but about six months later,
her mother asked her to leave because she could not provide for her. Having nowhere
else to go, B.R. moved back in with defendant. She has no contact with her mother.
Defendant and B.R. had separate bedrooms and bathrooms at the first home.
Defendant provided her with the necessities of life as she continued high school. During
this time, B.R. began dating Dustin T., forming a relationship that continued through
trial.
In fall 2008, during B.R.’s senior year in high school and prior to her turning 18,
defendant and B.R. moved to a residence on Kapalua Lane (second home). Defendant’s
girlfriend, Katrina Tougeron, moved in with them. B.R. had her own bedroom and
bathroom in the second home. She celebrated her 18th birthday there in October of 2008.
B.R. had access to defendant’s computer, which was located in a den or home
office. She created a password-protected profile on that computer. She never gave her
password to defendant. He never asked her for her password, and she never told anyone
her password. Defendant had his own password-protected profile, and B.R. did not have
access to his profile or know his password.
2
On May 23, 2009, B.R. was using defendant’s computer to edit her senior ball
photographs. At the time, defendant and Tougeron were preparing dinner. When B.R.
clicked on one of the programs, she saw pictures of her as if they had been taken from the
ceiling in her bedroom. At least one showed her alone; another showed her and True,
standing. B.R. had never seen these pictures before, and she felt horrified at seeing them.
She called Dustin T. and asked him to come over and view them. While waiting
for him to arrive, B.R. started dinner with defendant and Tougeron. She did not tell them
about the pictures. When Dustin T. arrived, she and he went into the office and viewed
the pictures. Dustin T. was shocked. They decided to go back to Dustin T.’s house to
talk and figure out what was happening. She told defendant she was leaving to go to
Dustin T.’s house. She gave him no indication she had found the pictures.
Dustin T.’s friend, Tim, was at Dustin T.’s house. After speaking about the
matter, the three decided to go back to defendant’s house and ask defendant if he knew
about the pictures. While traveling back, B.R. called defendant and asked him about the
pictures. After she told him she had found pictures from her room on the computer, there
“was a pause for a while.” Then defendant asked where the pictures were. She told him
they were on a program on the computer.
When the trio arrived at defendant’s home, defendant was sitting on the couch.
B.R. showed Dustin T. and Tim the pictures, and then defendant came into the room and
looked at them. When asked what happened next, B.R. said, “[It’s] a blur.” Sometime
later that evening after B.R. had shown defendant the pictures, B.R. saw defendant in the
office alone looking at different pictures on the computer. The first picture she saw him
viewing appeared to be of a person nude in a shower. B.R. was shocked, and she looked
away in disgust. Then she saw multiple pictures on the screen at once. She asked him
what he was doing. Defendant said he was trying to find the pictures. He seemed
frustrated and flustered.
3
Right after coming home, B.R. went into her bedroom and noticed a small hole
next to the smoke detector on the room’s ceiling. She also saw some pink insulation on
the floor. B.R. commented on the smoke detector to defendant, and he went into her
bedroom and started to unscrew it. He also went into her bathroom and began
unscrewing the vent in that room, apparently to see if there was a camera inside.
At some point, Tim telephoned the police. Upon hearing the police were coming,
defendant appeared “panicky.” After the police arrived, B.R. went to Dustin T.’s house,
and she never returned to defendant’s house.
Elk Grove police officers responded to defendant’s home around 8:48 p.m. the
evening of May 23, 2009. Officer David Monti viewed defendant’s computer and saw
three thumbnail images of a bedroom that looked as if they had been taken by closed-
circuit TV from a ceiling. Next, defendant showed Officer Monti B.R.’s bedroom.
Officer Monti recognized the bed in the room as the same bed he saw in the thumbnail
pictures on defendant’s computer.
Officer Monti saw a grate from a ceiling air vent and smoke detector parts on the
bed. There was a hole in the smoke detector that appeared to have been drilled. Using a
ladder, he looked at the electrical box in the ceiling where the smoke detector would have
been. There was a small gap between the drywall and the electrical box through which
he could see into the attic. Shining his flashlight through the gap, he saw the male
portions of audio/video cables behind the drywall. He described the cables as a black
wire with yellow, red, and white connectors. The cables at that end were not connected
to anything. They did not appear to be wiring that was normally used in a house.
Officer Monti went into the attic. He found the black wire he had seen from B.R’s
bedroom, and he followed it to the other end of the house. There, it was plugged into an
adapter box. Wires from the adapter box were plugged into a surge protector. Other blue
wires and cables that looked like phone jacks were also attached to the adapter box. The
cables from the adapter box went into a circuit breaker or power box that was located in
4
the master bedroom where defendant and Tougeron slept. Officer Monti did not locate a
camera in the attic.
Elk Grove Police Detective Kevin Papineau, an expert in computer forensics,
examined defendant’s computer on June 18, 2009. The computer had two hard drives; a
lower drive and an upper drive.
On the lower drive, in defendant’s profile, Detective Papineau found a résumé for
defendant. The resume stated defendant has a bachelor’s degree in computer science
from Purdue University and a master’s degree in software engineering from California
State University, Sacramento.
Still on the lower drive, and in a folder labeled “hidden,” Detective Papineau
found 25 video files. All of them had been deleted, and all had been last accessed on
May 23, 2009, between 8:00 p.m. and 8:17 p.m. Although all of the videos had been
deleted, the data remained for nine of them, and he was able to view those nine. All nine
were shown to the jury and identified by B.R. Three of them depicted B.R. masturbating
in the first home, in her bedroom and bathroom. Two showed her partially nude and
dressing in her first home bedroom. B.R. was under the age of 18 in these videos, and
she was unaware they had been made.
Four of the videos depicted B.R. and Dustin T. having sex in B.R.’s second home
bedroom. B.R. had no idea these videos were being made.
In the computer’s recycler folder (also known as the recycle bin), Detective
Papineau found approximately 2,000 images that were consistent with the views from the
camera in the videos. They had been deleted, or moved to the recycler folder, on May
23, 2009, between 7:59 p.m. and 8:45 p.m. The images were sequential, such that if
played with the appropriate software, they would create a movie.
Detective Papineau found other photos that were deleted on May 23, 2009,
between 7:59 p.m. and 8:45 p.m. These photos were shown to the jury and identified by
B.R. A series of photographs created in 2006 depicted B.R. masturbating with a vibrator
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in her first home bedroom. She would have been 15 or 16 years old at the time.2 B.R.
was not aware a camera was taking these photographs.
A series of photos created in 2007 depicted B.R. “[m]aking out, messing around”
and trying to have sex with a former boyfriend in her first home bedroom. B.R. was 15
or 16 when these photos were taken.
Two series’ of photos found in the recycler folder and created on two different
occasions in 2009 depicted B.R. and Dustin T. having sex in her second home bedroom.
She was 18 years old at the time, and she had no idea these photos were being taken.
Detective Papineau also viewed the media player art cache under defendant’s
profile. This is a temporary storage which the media player program uses to recall items
that were played on it. In this cache, he found photographs that had been created as files
between January 13, 2007, and September 5, 2007. B.R. identified these photos as
depicting her nude, and in some instances masturbating, in the first home’s bathroom and
bedroom. B.R. did not have any idea these photos were taken, and she did not take them
herself or install a hidden camera in her bedroom or the bathroom. She was under the age
of 18 when these photos were taken.
On the upper drive of defendant’s computer, Detective Papineau found a zip file
that contained images that were consistent with having been taken from a covert camera.
The file was labeled “hidden one dot zip.” This file was created on May 23, 2009, at
8:07 p.m. It contained a total of 2,158 files. Some of the folders and images in this file
were duplicates of others he had seen in the recycler and the videos folders. Others were
shown to the jury and identified by B.R. They included four series’ of photos apparently
taken on four different days in 2009 that depicted B.R. having sex with Dustin T. in her
second home bedroom. B.R. had no idea these photos were taken of her.
2 On cross-examination, B.R. testified defendant purchased a vibrator for her when
she was 15 years old.
6
Detective Papineau found other photos in the zip drive that were not contained in a
specific subfolder. Some of them appeared to have been taken from a covert overhead
camera. B.R. identified these photos, contained in four series’, as photos of herself nude
in both the first home and the second home. B.R. did not know these photos were taken
of her.
The remaining photos on the zip drive were not taken from an overhead camera.
Rather, most of these photos were taken by B.R. of herself in various states of dress.
B.R. liked to take photos of herself. She never shared these photos with anyone nor
posted them to a social network site or elsewhere on the Internet. She stored these photos
on her camera and then uploaded them to her password-protected profile on defendant’s
computer. She did not know how these photos ended up in defendant’s profile.
Detective Papineau had also located these photos in the recycler folder. On cross-
examination, B.R. stated she had deleted some of her own photographs at about 5:30 p.m.
or 6:00 p.m. on the evening of May 23, 2009.
B.R. testified she had only a basic knowledge of computers and computer
programs, which she learned from one computer class in high school. She was unfamiliar
with electrical wiring and audio/video cables. She also did not know how to attach a
camera to a ceiling or to transfer images from a surveillance camera to a computer. She
never stored any data under defendant’s profile on his computer.
On cross-examination, B.R. testified that a couple of weeks after leaving
defendant’s house, she met with a civil attorney, Kenneth Shepard, but at the time of trial,
she did not know whether a civil action had been filed. She described to Shepard what
had occurred prior to and on May 23, 2009. The lawsuit alleged defendant had recorded
and photographed B.R. in the residence, and B.R. was seeking damages. She stated she,
Dustin T.’s mother, and the prosecutor spoke with Shepard by phone outside the
courtroom during trial, and that she heard someone mention the suit was seeking
7
$1,000,000 in damages, but she never spoke directly with Shepard about the amount of
damages.
Defense
Defendant did not testify. His girlfriend, Katrina Tougeron, testified on his behalf.
At the time she moved in with defendant into the second home, he worked outside the
home as a programmer for a firm in Rancho Cordova. Both defendant and Tougeron
arrived home from work about 5:30 p.m. each day. Defendant routinely spent evening
hours assisting B.R. with homework or her dance lessons. After helping B.R. with her
homework, defendant and Tougeron would work out or watch movies. Weekends also
centered on B.R.’s schedule. Defendant would not be at the computer for hours at a time
on weekends. Any time he spent at the computer at home was for his work.
The night the police came to the home, May 23, 2009, had started as an ordinary
night. Tougeron prepared dinner for defendant and B.R. Dustin T. came over, and he
and B.R. sat in the computer room for about 20 minutes. B.R. was not upset and did not
appear to be angry. Then they left the house for an hour or so. During that time,
defendant and Tougeron watched basketball on TV. Also during that time, B.R. called
defendant two or three times. After the calls, defendant seemed flustered and confused,
and he did not understand what B.R. had been discussing with him. But after each call,
he continued to watch TV with Tougeron. He did not get up at any time.
Then B.R., Dustin T., and Dustin T.’s friend, Tim, came into the house, went
straight into B.R.’s room, and closed the door. They stayed there for about 10 to 15
minutes. They came out, and Tougeron met them in the hall. B.R. was “freaked out, just
shooken up [sic],” and she started questioning Tougeron and snapping at her. She asked
if defendant had been in her room. Tougeron said he had not and had been sitting with
her on the couch. B.R. brought Tougeron into her bedroom. She saw insulation on the
floor and a hole in the smoke detector on the ceiling. The presence of insulation on the
floor seemed unusual, and Tougeron asked B.R. about it. B.R. continued asking if
8
defendant had been in her room. She accused defendant of having a camera in the ceiling
and taking pictures of her. She brought Tougeron to the computer. At about this time,
defendant went into the garage to retrieve a ladder to see what was going on.
B.R. brought up a photograph on defendant’s computer and told Tougeron to look
at it. Tougeron started giggling because the image was about one-inch in diameter and
she could not tell what it was. Dustin T. yelled at Tougeron that someone had been
taking pictures and he was going to sue defendant. Tougeron called him an “ignorant
bastard.” Then they went into the bedroom to see if defendant had found a camera.
Tougeron testified there was not a time she could recall seeing defendant by
himself at the computer that evening from the time B.R. first called him to the time the
police arrived.
On cross-examination, Tougeron stated defendant was a computer engineer. He
used his home computer for hours and hours at a time for work if the project required it.
She stated defendant is experienced with installing lighting. He also set up the TV in
their home, including connecting all of the wires, such as the DVD player to the TV.
Tougeron herself has no computer expertise and is not familiar with video editing or any
audio/video technology.
Tougeron also stated defendant owns two or three cameras. He transfers photos
from his cameras to his computer, and he posts the photos in a shared folder for anyone to
see. Defendant never let Tougeron use his computer through his profile nor did he share
with her his password to access his profile.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends insufficient evidence supports his convictions of the charged
offenses: possession of child pornography, sexual exploitation of a child, and unlawful
use of a concealed camera. We disagree.
9
Our standard of review on a claim of insufficient evidence is well known. “ ‘To
determine the sufficiency of the evidence to support a conviction, an appellate court
reviews the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value, from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.’
[Citations.]” (People v. Tafoya (2007) 42 Cal. 4th 147, 170.)
The standard is the same where the prosecution relies primarily on circumstantial
evidence. (People v. Snow (2003) 30 Cal. 4th 43, 66.) “ ‘Although it is the duty of the
jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two
[reasonable] interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of the
defendant's guilt beyond a reasonable doubt. “ ‘If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a reversal of
the judgment.’ ” [Citations.]’ [Citation.]” (People v. Stanley (1995) 10 Cal. 4th 764, 792-
793.)
A. Possession of child pornography and sexual exploitation of a child
To convict defendant of possession of child pornography (§ 311.11, subd. (a)), the
jury had to find defendant (1) knowingly possessed or controlled any matter or image that
contained or incorporated a film, the production of which involved a person under the age
of 18 years, and (2) that he knew the matter in his possession depicted a person under the
age of 18 years personally engaging in sexual conduct.3
3 At the time defendant committed the offenses, section 311.11, subdivision (a)
read: “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
10
Similarly, to convict defendant of sexual exploitation of a child (§ 311.3, subd.
(a)), the jury had to find defendant knowingly developed, duplicated, printed or
exchanged any image, such as a photograph or a computer-generated image, that
contained any film or filmstrip that depicted a person under the age of 18 years engaged
in an act of sexual conduct.4
The evidence sufficiently establishes defendant knowingly possessed and
developed matter or images that contained a film he knew to feature B.R., a person under
the age of 18, engaged in sexual conduct. Defendant knowingly possessed on his
computer at least three videos showing B.R. masturbating while in her first home
bedroom. Defendant also knew B.R. was under 18 years of age at the time of those
videos, as he was acting, for all intents and purposes, as her father, and knew she did not
turn 18 until after they moved to the second home. Defendant was the only person in the
home with knowledge of computers, cameras, and wiring to set up a system to
photograph and record B.R. in secret. The videos were kept in defendant’s computer
profile, to which neither B.R. nor Tougeron had access.
manner, any film or filmstrip, the production of which involves the use of a person under
the age of 18 years, knowing that the matter depicts a person under the age of 18 years
personally engaging in or simulating sexual conduct, as defined in subdivision (d) of
Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state
prison, or a county jail for up to one year, or by a fine not exceeding two thousand five
hundred dollars ($2,500), or by both the fine and imprisonment.” (Stats. 2007, ch. 579, §
38.)
4 Section 311.3, subdivision (a) reads: “A person is guilty of sexual exploitation of
a child if he or she knowingly develops, duplicates, prints, or exchanges any
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 that depicts a person under the age of 18
years engaged in an act of sexual conduct.”
11
Defendant raises a number of interpretations of the evidence to argue the jury
could have concluded he was neither responsible for, nor aware of, the videos on his
computer. He allegedly worked too many hours outside the home to have time to edit the
videos, and someone with his computer expertise would not have attempted to delete the
videos by moving them to the recycler folder, knowing they could be found there. He
also asserts there was opportunity and motive for Dustin T. and B.R. to plant the videos
in his computer and seek to recover damages in the civil action. None of his theories,
however, refute the fact that no one who testified had his computer skills or could access
defendant’s profile on his computer except him, and that was where the videos were
found. Suggesting Dustin T. planted the videos is mere speculation.
Even assuming everything defendant asserts is true and was heard by the jury, his
claim of insufficient evidence would fail because there was contradictory evidence. It is
the jury’s call in such a case because it must determine whom to believe and what is true;
that is, determine the facts. “It is an elementary, but often overlooked principle of law,
that when a verdict is attacked as being unsupported, the power of the appellate court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the conclusion reached by the jury.
When two or more inferences can be reasonably deduced from the facts, the reviewing
court is without power to substitute its deductions for those of the trial court.
[Citations.]” (Crawford v. Southern Pacific Co. (1935) 3 Cal. 2d 427, 429.) Sufficient
evidence supports defendant’s convictions of possessing child pornography and sexually
exploiting a minor.
B. Unlawful use of a concealed camera
To convict defendant of unlawful use of a concealed camera (a form of disorderly
conduct) (§ 647, subd. (j)(3)(A)), the jury had to find defendant (1) used a concealed
camera to secretly photograph a person to view that person’s body or undergarments in a
12
bedroom or bathroom, (2) without the consent or knowledge of the person being
photographed, and (3) with the intent to invade that person’s privacy.5
Substantial evidence establishes defendant used a concealed camera to photograph
B.R.’s body in her first home bedroom and bathroom and her second home bedroom
without her consent and with the intent to invade her privacy. Even though a camera was
not found in the second home attic, it was reasonable for the jury to conclude one had
been there above B.R’s bedroom, and others had been placed above her bedroom and
bathroom in the first home. It was obvious the videos and pictures had been taken from a
point in the ceilings. Insulation was found on the floor of the second home bedroom,
suggesting someone had secretly removed a camera from that room’s ceiling.
Audio/video cables were found running from where the smoke detector had been, with its
small hole, back across the attic to an adapter, which was also connected to other
electronic wiring and cables that led to a circuit breaker or power box located in the
master bedroom where defendant and Tougeron slept. B.R. never gave her consent to
any of the videos and photographs found in defendant’s profile, and the videos and
photographs obviously were taken to invade her privacy repeatedly.
Defendant asserts the lack of cameras, and the fact the audio/video cables were not
connected to any cameras, demonstrate there was insufficient evidence to convict him of
unlawful use of a concealed camera. We disagree. The circumstantial evidence
established photographs and videos had been taken from concealed cameras in B.R.’s
5 Section 647, subdivision (j)(3)(A), reads: “Any person who uses a concealed
camcorder, motion picture camera, or photographic camera of any type, to secretly
videotape, film, photograph, or record by electronic means, another, identifiable person
who may be in a state of full or partial undress, for the purpose of viewing the body of, or
the undergarments worn by, that other person, without the consent or knowledge of that
other person, in the interior of a bedroom, bathroom, changing room, fitting room,
dressing room, or tanning booth, or the interior of any other area in which that other
person has a reasonable expectation of privacy, with the intent to invade the privacy of
that other person [is guilty of disorderly conduct].”
13
bedroom and bathroom in the first home and her bedroom in the second home. B.R. was
not aware any of the videos and photographs of her had been taken. Those taken in the
second home bedroom were no doubt facilitated by the audio/video cables found in the
attic running from the smoke detector in the bedroom, and all of the photographs and
videos had been stored in defendant’s password-protected profile on his computer. This
evidence is very strong, and more than enough to support defendant’s conviction of
unlawful use of a concealed camera without the production of an actual camera.
II
Admission of, and Impeachment on, B.R.’s Civil Complaint
B.R. acknowledged she had met with an attorney for filing a civil action against
defendant, but during her cross-examination, the trial court denied admitting into
evidence a purported copy of her civil complaint on the grounds of hearsay. In closing
argument, the prosecutor stated there may or may not have been a civil action. The trial
court admonished the jury that, contrary to the prosecutor’s statement, the civil action
existed and could be considered in evaluating the evidence. The court repeated this
instruction in response to a jury question about how it could consider the civil action.
Defendant contends the trial court denied him his right to present a defense. He
sought to impeach B.R. by establishing the allegations in the civil complaint were
without factual support, thereby showing B.R. was willing to fabricate allegations. He
faults the court for not taking judicial notice of the civil complaint. Had it done so, he
allegedly could have cross-examined B.R. on the complaint’s specific allegations.
Defendant asserts the admonition to the jury admitting the existence of the civil
complaint after the prosecutor’s misstatement, without also admitting the complaint into
evidence by means of judicial notice, was insufficient to cure the error and allow
defendant to impeach B.R. properly. He does not challenge the court’s ruling denying
admission of the complaint based on hearsay.
14
We affirm the trial court’s rulings on the limited record provided us on this issue.
Even if the trial court had erred, we would conclude the error was harmless.
A. Additional background information
Defense counsel questioned B.R. during cross-examination about whether she had
filed a civil lawsuit against defendant. She acknowledged speaking with her attorney,
Mr. Shepard, but she initially testified she was not sure whether or not he had filed a
lawsuit. Counsel asked her to read defendant’s exhibit A. When counsel asked her if
defendant’s exhibit A was the civil complaint filed by her attorney, B.R. responded, “I
don’t remember in that [sic], but it sounds like it.”6 When counsel stated she intended to
discuss some of the complaint’s allegations with B.R., the prosecutor asked to approach
the bench. Following the bench conference, the court announced it was sustaining a
hearsay objection to defendant’s exhibit A. The court did not record what transpired in
the bench conference. Defendant’s exhibit A was never admitted into evidence.
Counsel continued to ask B.R. questions regarding whether she had made certain
factual assertions about defendant to Shepard. At one point, counsel showed B.R.
defendant’s exhibit B. The document had Shepard’s name on the top.7 Then the
following colloquy occurred:
“Q. Looking at who filed the lawsuit, the plaintiff and the defendant, do you
recognize that?
“A. Yes.
“Q. Now, looking at the damages, right here and right here?
6 The clerk’s minutes describe defendant’s exhibit A as a “9 page document
depicting Sacramento Superior Court of California Complaint for case number 34-2010-
00078380.”
7 The clerk’s minutes describe defendant’s exhibit B as a “1 page document
depicting - Statement of damages in B.R. vs. Travis Leith.”
15
“A. I never seen [sic] this before.
“Q. Okay. I’m just asking you to look at this.
“A. Okay.
“Q. Okay.
“A. Definitely.
“Q. Are you aware how much you are suing [defendant] for?
“A. No.
“Q. You’re not?
“A. Until now I have not seen this before.
“Q. Okay. Well, you are actually suing [defendant] for --
“[Prosecutor] Objection, counsel is testifying.
“[Defense counsel] [sic] Objection sustained.
“Q. . . . Well, the other day [the prosecutor] and you, Mr. [T.]’s mother were able
to call your attorney from outside this courtroom, were you not?
“A. Correct.
“Q. And at that time you knew that you were suing [defendant] for $1,000,000,
correct?
“A. I believe so, I didn’t directly talk to [attorney] Ken Shepard.
“Q. So when you just sat here and said I have no idea how much I’m suing
[defendant] for, that’s incorrect, is it not?
“A. I really didn’t know until you showed me that. I talked to him the other day,
but I still don’t know everything.
“[¶] . . . [¶]
“Q. . . . You know you are suing him for at least a million, right?
“A. I didn’t directly talk to Ken Shepard. I heard based on other people, but I
don’t know if it’s $1,000,000, I can’t be exact on that.”
16
During her closing argument, the prosecutor recalled the discussion about a civil
action. She said: “There’s been some mention of a civil trial. You are the criminal
jurors. The civil trial is for another jury. You are here to decide simply whether the
defendant is guilty of the crimes charged. [¶] You have no concern with what’s
happening with a pending lawsuit that may or may not exist. We don’t know much about
that, and that is not your concern.”
Defense counsel objected to the prosecutor’s statements. Outside the presence of
the jury, counsel moved for a mistrial based on prosecutorial misconduct: the statement
the civil action may or may not exist, and the statement the civil action was not the jury’s
concern. She stated the record already showed the prosecutor knew the civil action was
pending. The prosecutor had spoken with B.R.’s civil attorney and had learned the action
was seeking $1,000,000 in damages.
Defense counsel continued: “It has been the defense theory of this case from the
very beginning, from opening through the entire questioning of this case until closing,
which I have obviously not had a chance to do, that the motive for [B.R.] to accuse
[defendant] of this conduct was based in large part on financial gain through a civil
lawsuit.
“In some ways we are not able to question that, but we were in other ways, that
testimony did come out, and for [the prosecutor] to get up in front of the jury and say two
things, one, that the civil suit may or may not be in existence, and -- that’s one, and two,
that they are not to consider it, which is not the law.
“They absolutely can consider it as motive and bias, and the credibility of
witnesses. It’s clear that financial outcome in the case is something they can
consider . . . .”
In response, the prosecutor stated: “I don’t know exactly what I said, but I think I
was referring to the fact whether -- about the jurors’ knowledge in this case about
whether the -- the civil trial is pending or not.
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“Again, there was no concrete evidence presented to the jury in terms of certified
documents or any other documents showing that a civil suit was in existence, and I may
have misspoken, but I don’t think that amounts to a mistrial.
“I think that the Court, and I can correct the record, that [B.R.] did testify that she
was aware she had visited with an attorney and that papers had been filed.
“Again, what I maintain -- what I did mean to say is that we are not aware of what
the status of that case is, and that trial is a separate trial from this trial, and the jurors
should not be focused on the money issues in this case.”
The trial court “absolutely disagree[d]” with the prosecutor’s characterization of
the issue. The evidence showed a civil lawsuit existed, and the existence of that lawsuit
was “certainly” something the jury could consider.
However, the trial court concluded the misstatements did not rise to the level of a
mistrial. It decided to, and did, admonish the jury that the civil action existed, and that it
could be considered by the jury in evaluating the evidence.
The prosecutor then continued her argument: “Ladies and gentlemen of the jury, I
misspoke, and the Judge has corrected that. Again, you are the finders of the fact, and
anytime there’s a conflict in the evidence, you can ask for a readback of testimony to
figure out exactly what the facts are in this case.
“[¶] . . . [¶]
“What is important in this case is the record. And again, there is a civil trial
pending in this case. [B.R.] testified that her lawyer had filed papers, that she met with a
lawyer two weeks after, and again it’s for -- it’s up to you to consider how you want to
consider that.
“[B.R.] has every right to bring a civil suit in this case. She has suffered a harm,
and there are damages; but you are not the jury to decide the damages. You are the jury
in this case that will decide the guilt or innocence of [defendant].”
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During its deliberations, the jury asked the court for “[i]nstructions on how to
consider the civil suit.” The court replied: “In evaluating witness testimony, you may
consider anything that reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider (Instruction 226) is[:] [¶] Was the
witness’s testimony influenced by a factor such as bias or prejudice, or a personal
interest in how the case is decided. [¶] The existence of the civil suit is a factor for the
jury to consider in evaluating witness testimony.” (Original italics.)
B. Analysis
Defendant contends the trial court denied him his right to present a defense by not
taking judicial notice of the complaint in B.R.’s civil action, which, he asserts, would
have allowed him to cross-examine B.R. regarding that complaint’s allegations. He
claims the court’s admonition to the jury verifying the existence of the civil action after
the prosecutor’s alleged misconduct was insufficient to allow defendant to impeach B.R.
fully.
A court is permitted to take judicial notice of court records. (Evid. Code, § 452,
subd. (d).) A court must take judicial notice of court records if a party requests it, gives
each adverse party sufficient notice of the request, and gives the court sufficient
information to review the request. (Evid. Code, § 453.) Nothing in the record shows
defendant established a proper foundation or requested the trial court take judicial notice
of defendant’s exhibit A. Thus, the court had no basis for doing so, and defendant is left
to argue that the court abused its discretion by not taking permissive judicial notice of
defendant’s exhibit A on its own motion. Where a party does not establish a proper
foundation and fails to request judicial notice, he can rarely show the trial court
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committed reversible error by not granting permissive judicial notice on its own motion.
(See 1 Witkin, Cal. Evidence (5th ed. 2012) Judicial Notice, § 38, p. 148.)8
Defendant also did not include in the appellate record a copy of defendant’s
exhibit A, further complicating his burden. As a result, we have no ability to determine
whether defendant’s exhibit A was authenticated or whether it should have been admitted
in the regular course of trial or might have been under permissive judicial notice. We
must therefore assume all facts necessary to support the trial court’s decision not to admit
on its own motion defendant’s exhibit A on the basis of hearsay and not to admit it under
judicial notice, and we uphold the decision on that basis. “A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown.” (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564, original italics.)
The prosecutor’s misstatements at argument do not compel a different result. The
trial court’s admonition and instruction, and the prosecutor’s confession, more than cured
any error that could have arisen from the prosecutor’s misstatement. Both informed the
jury the prosecutor had misstated the evidence, a civil action by plaintiff was ongoing,
and the jury could consider that action’s existence when evaluating the credibility of
witnesses. The jury was well aware B.R. had spoken with an attorney soon after she
discovered the pictures about bringing a civil action, and that she believed the action was
8 In defendant’s points and authorities supporting his motion for new trial, defense
counsel asserted he had asked the court in the sidebar conference to take judicial notice of
defendant’s exhibit A. The prosecutor, in his opposition points and authorities, claims
defense counsel made no such request during the conference. Neither attorney cited to
the record to support their claims, nor did they make their claims under oath. There is
thus no evidence defendant requested the court take judicial notice. It is the appellant’s
burden to ensure an adequate record is kept of the proceedings to allow us to consider
issues raised on appeal. (Null v. City of Los Angeles (1988) 206 Cal. App. 3d 1528, 1532-
1533.) Such sidebar conferences should always be placed on the record.
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seeking possibly $1,000,000 in damages from him. The trial court’s instruction and
admonition clearly authorized the jury to consider evidence about the civil action in
evaluating B.R.’s credibility.
Even if we determined the trial court had erred by not admitting defendant’s
exhibit A under any basis (assuming it to be an authenticated copy of B.R.’s civil
complaint), we would find the error harmless under any standard. (People v. Watson
(1956) 46 Cal. 2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d
705, 710-711].) There is no reasonable possibility defendant would have received a more
favorable result had defendant’s exhibit A been admitted into evidence. Nothing in any
alleged inconsistency between B.R.’s testimony and the purported allegations written by
her attorney in defendant’s exhibit A would have overcome the evidence supporting
defendant’s conviction. His password-protected profile, not known by anyone else in the
home, contained videos and photographs of B.R. engaged in sexual conduct recorded
from an overhead camera in her bedrooms and bathroom in two different houses of which
she had no knowledge and for which she had granted no consent. An audio/video cable
running in the attic from near B.R.’s smoke detector in her second home bedroom ceiling
back to other electronic equipment above defendant’s bedroom indicates some type of
camera had been there, and the insulation on the bedroom floor indicates the camera had
been removed recently. Defendant was the only person in the household with anything
more than a basic knowledge and expertise of cameras, computers and electronics. The
evidence overwhelmingly establishes his guilt, and the ability to cross-examine B.R. on
differences between her testimony and defendant’s exhibit A would not have changed the
verdict.
III
GPS Monitoring as a Term of Probation
The trial court sentenced defendant to five years of probation with one year in the
county jail. The court conditioned probation on defendant being subject to GPS
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monitoring for his probation term. Defendant contends the court abused its discretion by
imposing this condition. He claims the restriction bears no reasonable relationship
between him and his offenses. He scored in the low-risk category of potentially
reoffending on the Static-99R test, and he has no prior criminal history. He asserts he is
not a high-risk sex offender and there is no evidence the public was in any risk on his
account. We conclude the trial court did not abuse its discretion.
“The classic formulation of a trial court’s power to impose probation conditions is
taken from People v. Lent (1975) 15 Cal. 3d 481, 486, where our Supreme Court stated:
‘A condition of probation will not be held invalid unless it “(1) has no relationship to the
crime of which the offender was convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not reasonably related to future
criminality . . . .” [Citation.]’ ” (People v. Balestra (1999) 76 Cal. App. 4th 57, 65, fn.
omitted.)
The probation condition is valid because it relates to the crimes for which
defendant was convicted, and it assists in requiring or forbidding conduct that is
reasonably related to future criminality. Section 1210.7 authorizes continuous electronic
monitoring of probationers, provided the monitoring has as its primary objective “the
enhancement of public safety through the reduction in the number of people being
victimized by crimes committed by persons on probation.” (§ 1210.7, subd. (b).) In
defendant’s case, the device allows the probation department to monitor his compliance
with his other probation conditions, including attending counseling, not being in the
presence of any minor or groups of minors under the age of 18 without approved
supervision, not knowingly engaging in volunteer work involving minors, and not having
any contact with B.R. All of these conditions are designed to protect public safety by
ensuring defendant does not use his extensive computer skills to victimize unsuspecting
persons, especially minors, while on probation, and the GPS monitoring significantly aids
in their enforcement. The court did not abuse its discretion in imposing the condition.
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DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
MAURO , J.
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