People v. Armas CA4/1 ( 2022 )

Filed 8/31/22 P. v. Armas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079728
Plaintiff and Respondent,
v. (Super. Ct. No. FWV18003945)
ANTONIO GERMAN ARMAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, Katrina West, Judge. Affirmed.
Rob Bonta, Attorney General, Charles C. Ragland, Senior Assistant
Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy
Attorneys General, for Plaintiff and Respondent.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Antonio German Armas appeals the order placing him on probation for
two years after a jury found him guilty of possession and distribution of child
pornography. He claims the evidence was insufficient to support the verdicts,
the trial court prejudicially erred by failing to instruct the jury on momentary
possession and unanimity, and the cumulative effect of these errors deprived
him of a fair trial. We disagree and affirm the order.1
I.
BACKGROUND
A. Charges
The People charged Armas with one count of distributing child
pornography (Pen. Code, § 311.1, subd. (a); undesignated section references
are to this code) and one count of possessing child pornography (§ 311.11,
subd. (a)). Armas pled not guilty and demanded a jury trial.
B. Prosecution Case
The People called several employees of the Police Department of the
City of Fontana (the Department) to testify at trial.
1. Jeremy Hale
In 2018, Jeremy Hale was the supervisor of the Department’s task force
that investigated Internet crimes against children. He targeted the use of
peer-to-peer computer networks, which allow Internet users to share
electronic files, including movies and images. Such sharing reduces
download times because a user may download portions of the same file from
multiple other users simultaneously. Hale explained that a peer-to-peer
network user must install a certain type of software (e.g., eMule, eDonkey, or
Gnutella) on his computer to access the network. During the installation, the
user must select whether or not to allow sharing of files with other network
users. The software allows the user to search the network for particular
content by inputting the title of a file or search terms. When the user finds
1 The order granting probation, though technically not a judgment
because it imposed no sentence (People v. McKenzie (2020) 9 Cal.5th 40, 46;
People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9), is deemed to be a final
judgment for purposes of appeal (Pen. Code, § 1237, subd. (a)).
2
what he is looking for, he may download the file onto his computer and view
it.
In April of 2018, Hale launched an investigation into online child
pornography activity in San Bernardino County. Using a computer program
developed by law enforcement to track the sharing of child pornography on
peer-to-peer networks, a database of secure hash algorithms (SHAs)2 each of
which is unique to an Internet file known to contain child pornography, and
search terms common in files containing child pornography, Hale initiated a
search for child pornography. A computer with an Internet protocol (IP)
address later determined to belong to Armas’s residence responded to the
search. Hale was able to download one complete video called “tropical cuties”
and five partial videos. The “tropical cuties” video showed a girl between the
ages of 10 and 12 years masturbating, performing fellatio, and engaging in
group sexual intercourse. The partial videos had SHAs of known child
pornography.
On cross-examination, Hale acknowledged an IP address does not
identify the specific person using a computer at that address, and it is
possible for one person to hack into another person’s wireless Internet
network and use the other’s IP address. Hale also acknowledged it is possible
for a peer-to-peer network user unknowingly to download child pornography
by searching for something else if a search term happens to be in the title
given to a file containing child pornography.
2 “A hash value is like a DNA signature for a digital file; it is statistically
unique and never changes, so it provides a way to authenticate that two
digital files are identical, even if the names are different.” (People v. Lund
(2021) 64 Cal.App.5th 1119, 1125.)
3
2. Marcia Pineda
Marcia Pineda was a detective who investigated Internet crimes
against children for the Department in 2018. On October 24 of that year, she
executed a search warrant at Armas’s residence and found in the living room
a desktop computer that was powered on. The eMule program was running
and actively sharing content with other computers on the peer-to-peer
network. Pineda turned off the firewall and attached a device that allowed
her to search the computer’s hard drive. The device found several files with
terms commonly used for child pornography, including “16-year-old pu**y
series cute Lolita f**ked PTHC [preteen hardcore] stickhim hot underage
teen girl,” “Russian teen Yana,” and “14-year-old while shame.” Pineda
seized the computer and took it to the police station for forensic analysis.
3. Brandon Canary
Brandon Canary worked as a computer forensics technician for the
Department in 2018. He performed a full forensic analysis of the computer
Pineda had seized from Armas’s residence. Canary searched the computer
for terms commonly used in the names of files containing child pornography
and found “hundreds of them.” More than 30 such files had been opened and
viewed on media players, and some had been recently accessed. These files
were accessed from user-created folder “C:users/Tony/downloads/eMule/junk”
or “C:users/Tony/downloads/eMule/incoming.” The viewed files included,
among others, “tropical cuties” and “PTHC 14yo immature Asian girl anal
plus Blowjob 12yo 11yo 13yo anal PTSC cum shot Lolita 2012 preteen
webcam_Xvid.avi.” In the eMule program, Canary found more than 50 files,
approximately 20 of which had been shared with other users. For example,
on October 6, 2018, a file named “Pedo asian kid box Thai lolita young pretty
girl 13yo sweet make love.mpg” was requested 94 times, and 17 of the
4
requests were granted. On the same day, a file named “PTHC 10y Petite
Thai Preteen Blowjob plus Pu**y F**k Plus cream Pie Rare OPVA KLVN
090904 2014 kids Asian 9y 11y 12y 13y converted.mov” was requested eight
times, and five of the requests were granted. Other files with similarly
obscene names were shared earlier and later in the same month. The
Internet search history of the computer listed more than 25 file names with
terms commonly used for child pornography, including the “tropical cuties”
video Hale had downloaded from Armas’s computer.
Canary also examined the computer seized from Armas’s residence to
determine whether it contained any child pornography in the “unallocated
space,” to which deleted files would have been moved whenever the recycle
bin was emptied. He found four images: (1) three naked preteen girls;
(2) two naked preteen boys touching each other; (3) a naked girl on a bed; and
(4) a toddler’s vagina with a large hand on it. Canary found no similar
images in the allocated space of the computer; that space contained the file
names that had been searched for, downloaded, and shared, as mentioned
above, but no actual files. According to Canary, computer programs can
“wipe out unallocated space” to prevent recovery of files that had been
deleted and sent there.
When cross-examined, Canary conceded a person inadvertently could
download child pornography onto a computer by downloading a file the
person did not know contained such material. He similarly conceded a peer-
to-peer network user who unknowingly had child pornography on his
computer could share the material with another user who requested it.
Canary admitted he could not tell from his forensic examination what specific
portion of a file was shared; he could tell only that the file had an SHA known
for child pornography and that some portion of the file had been shared.
5
Canary did not know whether any of the four images he found in the
unallocated space had been shared. He did not find on the computer any
programs that permanently delete files, but “did not go deep into looking for
those.”
4. Vanessa Waggoner
Vanessa Waggoner was another member of the Department’s task force
on Internet crimes against children in 2018. She read Armas his rights
under Miranda v. Arizona (1966) 384 U.S. 436 and then interviewed him
after his computer had been seized. Armas said the computer was his and
his wife also had access to it. He told Waggoner he had been using a peer-to-
peer file sharing program for four to five years to access music, movies, and
adult pornography. When looking for pornography, Armas used such search
terms as “gorgeous,” “nice butt,” “petite teen,” and “cute.” He selected files
from the search results and downloaded them. Armas said he never
purposefully downloaded any child pornography, but he eventually became
aware some of the downloaded files contained child pornography. He said he
viewed the files, and if they contained child pornography, he deleted them or
moved them to his designated “junk” folder.
C. Defense Case
Armas did not testify at trial and called only one witness, digital
forensics expert Ernest Koeberlein. Koeberlein analyzed the hard drive of
Armas’s computer and found “a lot” of adult pornography but no child
pornography. Koeberlein found complete and partial file names for child
pornography but no actual files. He found evidence that files were shared
from the computer but no evidence the shared files contained child
pornography. Koeberlein found no programs that could permanently delete
files. On cross-examination, Koeberlein stated he did 10 hours of forensic
6
analysis on Armas’s computer. He admitted he did not specifically examine
the recent play lists of the media players, the most recent uploads folder, the
Internet search history, or the unallocated space to determine whether they
contained titles or words commonly associated with child pornography
D. Verdicts and Sentencing
The jury found Armas guilty on both counts. The trial court suspended
imposition of sentence and placed Armas on probation for two years.
II.
DISCUSSION
A. Sufficiency of the Evidence
Armas contends the evidence was insufficient to establish he knowingly
possessed or controlled child pornography as required for conviction of both
offenses. As to distribution, Armas argues there was no evidence he was
using the computer when the “tropical cuties” video and portions of other
videos were sent to Hale, none of the videos was found on the computer, and
software that could have deleted the videos was not installed on the
computer. As to possession, Armas argues the only pornographic images of
children found on the computer were in the unallocated space to which
deleted matters were consigned, and there was no evidence such images were
searched for, saved, repeatedly accessed, or obliterated.3 The People respond
3 Armas also contends any possession of child pornography was so
fleeting that it qualifies for the defense of momentary possession and renders
the People’s evidence insufficient to support the convictions. As we explain
as part of our discussion of Armas’s related claim that the trial court
prejudicially erred by failing to instruct the jury on the momentary
possession defense, however, there was no substantial evidence to support
the defense. (See part II.B.1, post.) Moreover, even if there were such
evidence, as we discuss in the text below there was substantial evidence from
which the jury could conclude Armas possessed child pornography more than
momentarily, and actually saved and viewed it on his computer and shared it
7
they presented substantial evidence from which the jury could conclude
Armas actively sought out and viewed child pornography by using his
computer and shared what he found with others over his peer-to-peer
computer network. The People are correct.
In considering a challenge to the sufficiency of the evidence to support a
judgment of conviction, we review the whole record in the light most
favorable to the judgment to determine whether it contains substantial
evidence (i.e., evidence that is reasonable, credible, and of solid value) from
which a rational jury could find the elements of the crime beyond a
reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v.
Johnson (1980) 26 Cal.3d 557, 578; People v. Mendoza (2015) 240 Cal.App.4th
72, 85.) We resolve in favor of the judgment all conflicts in the evidence and
all inferences that reasonably may be drawn from the evidence. (Jackson, at
p. 319; Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, 1412
(Tecklenburg).) We do not weigh the evidence or assess witness credibility.
(People v. Navarro (2021) 12 Cal.5th 285, 302; People v. Petrovic (2014) 224
Cal.App.4th 1510, 1517 (Petrovic).) As we explain below, under this
deferential standard of review the jury’s guilty verdicts must be upheld.
We first consider the conviction of distributing child pornography. To
obtain that conviction, the People had to prove Armas knowingly transferred
to someone else possession of matter that he knew depicted a minor
personally engaged in sexual conduct. (§§ 311, subd. (d), 311.1, subd. (a).)
One way to violate section 311.1, subdivision (a) is for a user of a peer-to-peer
computer network to share an electronic file known to contain child
with others. Since we must view the evidence in the light most favorable to
the judgment, we reject Armas’s contention his possession of child
pornography was only momentary and thus insufficient to support the
convictions.
8
pornography with another network user. (People v. Wimer (2022) 74
Cal.App.5th 113, 136 (Wimer).) The People introduced evidence of this type
of violation at trial. Armas told Waggoner that the computer seized from his
residence was his, that he shared computer files on a peer-to-peer network,
that he searched for adult pornography by using terms such as “petite teen”
and “cute,” and that he was aware some of the files he downloaded contained
child pornography. Canary testified he found the “tropical cuties” file name
and other child pornography file names in the Internet search history of the
computer; and in the peer-to-peer network sharing program (eMule), he
found more than 50 file names of known child pornography, many of which
had been accessed from folders containing “Tony” and “eMule” in their
names, viewed on the media players installed on the computer, and uploaded
to other network users. Hale testified that during his investigation of online
child pornography activity, he accessed the peer-to-peer network and
downloaded from a computer with an IP address belonging to Armas the
“tropical cuties” video, which depicted a 10- to 12-year old girl engaging in sex
acts. From this testimony, the jury reasonably could conclude Armas
knowingly used his computer to search for, download, and view child
pornography files and knowingly transferred possession of such files to other
users over his peer-to-peer network. (See § 311, subd. (e) [“ ‘Knowingly’
means being aware of the character of the matter”]; People v. Kuhns (1976) 61
Cal.App.3d 735, 756 [statute prohibits “ ‘ “not innocent but calculated
purveyance of filth” ’ ”].)
We next consider the conviction of possessing child pornography. To
obtain that conviction, the People had to prove Armas knowingly possessed or
controlled matter he knew depicted a minor personally engaged in sexual
conduct. (§ 311.11, subd. (a).) Among the ways the People could do so were
9
to prove that Armas intentionally sought out child pornography on the
Internet and made it appear on his computer screen (Petrovic, supra, 224
Cal.App.4th at pp. 1516-1517) or that he actively downloaded child
pornography and saved it to his computer (Tecklenburg, supra, 169
Cal.App.4th at p. 1419, fn. 16). As discussed above in connection with the
distribution conviction, Canary testified the Internet search history of
Armas’s computer listed multiple file names with terms commonly used in
child pornography files, and Armas told Waggoner he searched for
pornography using such terms as “petite teen” and “cute” and downloaded
files that he became aware contained child pornography. Canary also
testified he found in the unallocated space of the computer four images of
naked minors, including one of two preteen boys touching each other and
another of a large hand touching a toddler’s vagina, which Armas concedes
qualify as depictions of minors engaged in sexual conduct. (See § 311.4, subd.
(d)(1) [defining “sexual conduct” to include masturbation, exhibition of
genitals for purpose of sexual stimulation of viewer, and any lewd or
lascivious sexual act under § 288].) From this evidence, the jury reasonably
could conclude Armas knowingly possessed the images by searching for,
downloading, viewing, and then deleting them. (See Petrovic, at p. 1516
[“ ‘ “intentionally seeking out child pornography and purposefully making it
appear on the computer screen—for however long the defendant elects to
view the image—itself constitutes knowing control” ’ ”].)
Armas argues, however, the possibility of hacking, the location of child
pornography only in unallocated space on his computer, and the lack of any
evidence he used software to erase child pornography make the People’s
evidence “too thin” to prove he deliberately accessed and intentionally
distributed child pornography as required to support the convictions. Armas
10
contrasts the evidence in this case with that in Tecklenburg, supra, 169
Cal.App.4th 1402, where “[t]he evidence established defendant actively
searched for child pornography Web sites, opened such Web sites, went past
the home pages, clicked through images on at least one site tour, displayed
multiple images of child pornography from the Web sites on his computer
screen, in some cases multiple times, and enlarged some of the images from
thumbnail views.” (Id. at p. 1419.) Armas contends that without evidence
like that presented in Tecklenburg, the jury’s guilty verdicts in this case
cannot stand. We disagree.
The possibility of hacking does not undermine the jury’s verdicts.
Although Hale testified that someone who hacked into another person’s
Internet network could use that person’s IP address, there was no evidence
anyone had ever hacked into Armas’s network or used his IP address. A jury
may not base a verdict on mere possibility, suspicion, or speculation. (People
v. Grant (2020) 57 Cal.App.5th 323, 330; People v. Stanford (1959) 176
Cal.App.2d 388, 392.) The discovery of child pornography only in the
unallocated space of Armas’s computer also does not undermine the verdicts.
“Data or images found in unallocated space on a hard drive may . . . result
from deleted, saved or downloaded files or come in various ways from
[temporary Internet files]. There is often no way to determine the original
source, but it can be said that at some point it was on the computer screen.”
(Tecklenburg, supra, 169 Cal.App.4th at p. 1407.) Given the evidence of
Internet searches for child pornography, its discovery in the unallocated
space “evidenced [Armas’s] knowing possession or control of the images.” (Id.
at p. 1419.) The People did not also have to prove Armas “ ‘had the ability to
access, view, manipulate or modify’ the images that were on his computer”
when Pineda seized it. (People v. Mahoney (2013) 220 Cal.App.4th 781, 795
11
(Mahoney).) Nor is it of any significance that Canary and Koeberlein found
no program capable of permanently deleting files on Armas’s computer.
Although the existence of such a program could explain why child
pornography file names were found on the computer but actual files were not,
the absence of such a program does not prove the files were never there or
that Armas did not delete them. Canary’s testimony he found child
pornography file names in multiple locations on the computer, including the
Internet search history, folders with “Tony” and “eMule” in their names, the
eMule program, and the media players, constitutes circumstantial evidence
Armas downloaded and viewed the files and later deleted them.
“[C]ircumstantial evidence is as sufficient as direct evidence to support a
conviction.” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
We are also unpersuaded by Armas’s argument the evidence against
him falls short of that found sufficient in Tecklenburg, supra, 169
Cal.App.4th 1402. “When we decide issues of sufficiency of evidence,
comparison with other cases is of limited utility, since each case necessarily
depends on its own facts.” (People v. Thomas (1992) 2 Cal.4th 489, 516.) We
do note, however, that although there was no evidence in this case that
Armas “intentionally used his home and work computers to find, access, and
peruse through quantities of child pornography, manipulating the display of
such images on his computer screen” (Tecklenburg, at p. 1419), there was
evidence, albeit largely circumstantial, that he “actively searched for child
pornography” on his home computer, “displayed multiple images of child
pornography from [the Internet] on his computer screen” (ibid.), and shared
child pornography files with other peer-to-peer computer network users.
“Comparison of the evidence in this case with that in [Tecklenburg], for
12
whatever such a comparison is worth, thus fails to reveal any deficiency of
proof warranting reversal.” (Thomas, at p. 516.)
B. Instructional Errors
Armas raises two claims of prejudicial instructional error: (1) failure to
instruct the jury on the defense of momentary possession (CALCRIM No.
2305); and (2) failure to give the jury a unanimity instruction (CALCRIM No.
3500). The People respond that the evidence did not warrant giving the
instructions and, alternatively, that the failure to give them was harmless.
We review these claims of error de novo (People v. Guiuan (1998) 18 Cal.4th
558, 569; People v. Russell (2006) 144 Cal.App.4th 1415, 1424) and find no
prejudicial instructional error.
1. Momentary Possession
The affirmative defense of momentary possession was first recognized
by the Supreme Court of California in People v. Mijares (1971) 6 Cal.3d 415.
There, the Supreme Court held a person who threw heroin out of a car and
“maintained momentary possession for the sole purpose of putting an end to
the unlawful possession of [another]” was not guilty of unlawful possession of
narcotics. (Id. at p. 420.) The Supreme Court later clarified the defense
applies only to “ ‘a fleeting, de minimis possession and a reflexive act of
abandonment.’ ” (People v. Martin (2001) 25 Cal.4th 1180, 1191 (Martin); see
CALCRIM No. 2305 [defense applies when defendant possessed controlled
substance “only for a momentary or transitory period” and “in order to
(abandon[,]/ [or] dispose of[,]/ [or] destroy) it”].) The Supreme Court has
stated in dictum that against a charge of possession of child pornography the
defense would be available to “a person who innocently receives unsolicited
material, discovers it contains child pornography, and immediately destroys
13
the material or reports it to law enforcement.” (In re Grant (2014) 58 Cal.4th
469, 479, italics added.)
The trial court had no duty to instruct on the momentary possession
defense in this case. A court must instruct the jury on a defense if the
defendant relies on it at trial or if substantial evidence supports the defense
and it is not inconsistent with the defendant’s theory of the case. (People v.
Molano (2019) 7 Cal.5th 620, 667; People v. Maury (2003) 30 Cal.4th 342,
424.) Armas did not invoke the momentary possession defense at trial, and
there was no substantial evidence from which a reasonable jury could
conclude he possessed child pornography only very briefly for the purpose of
getting rid of it. Waggoner testified that when she interviewed Armas, he
told her that he used the peer-to-peer software to search for adult
pornography, and when he opened and viewed the search results and realized
some contained child pornography, he deleted them or moved them to his
“junk” folder. Canary testified he found evidence child pornography videos
had been played on the computer but found no actual videos, and he found
four images of child pornography in unallocated space on Armas’s computer,
where deleted items were moved when the recycle bin was emptied. Thus,
there was evidence Armas downloaded and deleted items of child
pornography on his computer, but, critically, there was no evidence on how
soon after downloading the items he deleted them. The deletions might have
been immediate, or they might have been days, weeks, months, or years later.
Without evidence the deletions were immediate, the defense was not
available. (In re Grant, supra, 58 Cal.4th at p. 479; see Martin, supra, 25
Cal.4th at pp. 1192-1193 [defense inapplicable to possession of
methamphetamine for four hours]; People v. Sullivan (1989) 215 Cal.App.3d
1446, 1449, 1453 [same as to possession during drive from home to dumpster
14
in industrial park].) The trial court thus had no duty to instruct the jury on
momentary possession. (See People v. Memro (1995) 11 Cal.4th 786, 868
[party not entitled to instruction on theory with no supporting evidence];
People v. Wilson (1992) 3 Cal.4th 926, 942 [speculation insufficient to require
instruction by court].)
2. Unanimity
A defendant has a federal and state constitutional right to a unanimous
jury verdict in a criminal case. (U.S. Const., 6th & 14th Amends.; Cal.
Const., art. I, § 16; Ramos v. Louisiana (2020) 590 U.S. ___, ___ [140 S.Ct.
1390, 1397]; People v. Russo (2001) 25 Cal.4th 1124, 1132.) This right
requires all jurors to agree the defendant committed the same specific crime
before they return a guilty verdict. (Russo, at p. 1132; People v. Norman
(2007) 157 Cal.App.4th 460, 464.) When a conviction on a single count could
be based on more than one discrete criminal act shown by the evidence, the
People must select the act on which they are relying or the trial court must
instruct the jurors that to return a guilty verdict they must all agree the
defendant committed the same act. (People v. Jennings (2010) 50 Cal.4th
616, 679; People v. Sorden (2021) 65 Cal.App.5th 582, 614-615 (Sorden); see
CALCRIM No. 3500.) The instruction is intended to eliminate the danger
that jurors will amalgamate evidence of multiple crimes to conclude the
defendant must have done something wrong and return a guilty verdict even
though there is no single crime all jurors agree the defendant committed.
(People v. Sutherland (1993) 17 Cal.App.4th 602, 612; People v. Deletto (1983)
147 Cal.App.3d 458, 472 (Deletto).)
The trial court was not required to give a unanimity instruction on the
charge of possession of child pornography (§ 311.11, subd. (a)), because the
People did not present more than one discrete offense to the jury.
15
Simultaneous possession of multiple items of child pornography at the same
location is chargeable as only one offense under section 311.11, subdivision
(a). (People v. Manfredi (2008) 169 Cal.App.4th 622, 624; People v. Hertzig
(2007) 156 Cal.App.4th 398, 403.) The People charged Armas with only one
count of possession of child pornography, and the possession alleged was on
the date his computer was seized. The evidence at trial showed the only
place where child pornography existed on that date was the unallocated space
of Armas’s home desktop computer. The People argued to the jury that even
though individual items might have been downloaded on other dates, Armas
was guilty because he still possessed them on the date his computer was
seized. Since the People’s theory was that Armas violated section 311.11,
subdivision (a) by possessing all the child pornography images on that date,
there was no reason for jurors to treat any one image differently from the
others and no need to direct them to choose and agree upon possession of a
particular image as the basis for conviction. (Mahoney, supra, 220
Cal.App.4th at p. 796; cf. People v. Sample (2011) 200 Cal.App.4th 1253, 1259
[possession of child pornography at two different times in two separate
locations supported two convictions].) And since evidence of only one
chargeable possession offense was presented to the jury, there was no danger
the jury would amalgamate evidence of multiple offenses and conclude Armas
must be guilty of something. (Deletto, supra, 147 Cal.App.3d at p. 472.)
Given the way the possession count was charged and presented to the jury,
no unanimity instruction was required. (Mahoney, at p. 796.)
The trial court should have given a unanimity instruction on the charge
of distribution of child pornography (§ 311.1, subd. (a)), however, because the
evidence showed multiple discrete offenses. Each download from Armas’s
computer of a different child pornography file by a peer-to-peer network user
16
constitutes a separate violation of the statute. (Wimer, supra, 74 Cal.App.5th
at pp. 136-139.) The People charged Armas with only one count of
distribution of child pornography and alleged the distribution occurred over a
period of several months. At trial they presented evidence of multiple
instances of distribution during that period. Canary testified he found
evidence in the eMule program that five child pornography files had been
uploaded to other peer-to-peer network users on different dates, and four of
the files were uploaded to multiple users. Where, as here, “the prosecution
shows several acts, each of which could constitute a separate offense, a
unanimity instruction is required.” (People v. Melhado (1998) 60 Cal.App.4th
1529, 1534.)
The trial court’s failure to give a unanimity instruction, however, does
not require reversal of the distribution conviction. A unanimity instruction is
not essential to the jury’s understanding of the case “ ‘[w]here the acts were
substantially identical in nature, so that any juror believing one act took
place would inexorably believe all acts took place.’ ” (People v. Beardslee
(1991) 53 Cal.3d 68, 93.) The multiple acts of distribution at issue here were
substantially the same in that each involved upload of a file containing child
pornography from Armas’s computer to another user on his electronic file-
sharing network, and the evidence supporting the distributions was the
same, i.e., Canary’s testimony. Because there was “no realistic possibility”
the jury would conclude some of the distributions occurred but not others, the
failure to give a unanimity instruction was harmless. (People v. Ramirez
(1987) 189 Cal.App.3d 603, 614-615.) Failure to give a unanimity instruction
is also harmless when the defendant offered the same defense to all criminal
acts and the verdict implies the jury rejected it. (People v. Covarrubias (2016)
1 Cal.5th 838, 879; Deletto, supra, 147 Cal.App.3d at p. 468.) Armas claimed
17
he did not knowingly download any child pornography files or intentionally
share them with others; he did not distinguish among the various files that
were uploaded to other network users; and the jury’s guilty verdict indicates
it rejected Armas’s claim. In sum, because the record provides no rational
basis, by way of argument or evidence, for the jury to have distinguished
between the multiple acts of distribution, and the jury must have found
beyond a reasonable doubt that Armas committed all acts if he committed
any, we conclude the trial court’s failure to give a unanimity instruction was
harmless beyond a reasonable doubt and does not require reversal. (People v.
Curry (2007) 158 Cal.App.4th 766, 783; Deletto, at p. 473.)
C. Cumulative Effect of Error
Armas’s final contention is that the trial court’s errors, even if harmless
when separately considered, combined to deprive him of his due process right
to a fair trial. “ ‘The “litmus test” for cumulative error “is whether defendant
received due process and a fair trial.” ’ ” (People v. Thomas (2021) 64
Cal.App.5th 924, 971.) “Under the ‘cumulative error’ doctrine, ‘ “a series of
trial errors, though independently harmless, may in some circumstances rise
by accretion to the level of reversible and prejudicial error.” ’ ” (Sorden,
supra, 65 Cal.App.5th at p. 618; see Montana v. Egelhoff (1996) 518 U.S. 37,
53 [“erroneous evidentiary rulings can, in combination, rise to the level of a
due process violation”].) We have found only one error, and it was harmless.
Hence, Armas’s claim of cumulative effect of error necessarily fails. (People v.
Sta Ana (2021) 73 Cal.App.5th 44, 64; People v. Lapenias (2021) 67
Cal.App.5th 162, 181.)
18
III.
DISPOSITION
The order placing Armas on probation is affirmed.
IRION, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
19