People v. Armas, D079728

CourtCalifornia Court of Appeals
Writing for the CourtIRION, Acting P. J.
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ANTONIO GERMAN ARMAS, Defendant and Appellant.
Docket NumberD079728
Decision Date31 August 2022

THE PEOPLE, Plaintiff and Respondent,
v.

ANTONIO GERMAN ARMAS, Defendant and Appellant.

D079728

California Court of Appeals, Fourth District, First Division

August 31, 2022


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Bernardino County, No. FWV18003945 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.

IRION, Acting P. J.

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

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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

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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.

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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

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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.

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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

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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...

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