People v. Billings

• Decision Date: 25 October 2021
• Docket Number: F075151
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CARSON BILLINGS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. CARSON BILLINGS, Defendant and Appellant.

F075151

California Court of Appeals, Fifth District

October 25, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No F11904170. Jonathan B. Conklin, Judge.

Nuttall Coleman and Drandell, Nuttall & Coleman and Roger T. Nuttall; Page Law Firm and Edgar E. Page for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY Acting P.J.

INTRODUCTION

In 2016, a jury convicted appellant Carson Billings of one count of possession or control of child pornography (Pen. Code, § 311.11, subd. (a)).^[1] The trial court suspended imposition of judgment and sentence, and appellant was placed on formal probation for three years. Appellant was ordered to serve 340 days in jail custody. With time credits, appellant had 54 days left to serve, and the court permitted him to complete that time in the adult offender work program. Appellant was required to register as a sex offender and attend a sex offender treatment program, among other terms and conditions.

Appellant contends his judgment should be reversed. He argues his conviction was based on the false and/or misleading testimony from the prosecution's computer expert who forensically examined his laptop and located files that depicted child pornography. Stemming in large part from that alleged false testimony, appellant raises numerous claims, including prosecutorial misconduct, a Brady^[2] violation, instructional error and cumulative error. He also maintains the lower court erred in denying a number of motions, including one for a new trial based on insufficiency of the evidence.

We determine appellant was not convicted based on false and/or misleading testimony. The record overwhelmingly and conclusively establishes that appellant knowingly possessed or controlled child pornography in violation of section 311.11, subdivision (a). We reject his claims and affirm.

BACKGROUND

It was undisputed at trial that child pornography files existed on appellant's laptop. At trial, appellant claimed he had not intended to download the child pornography that law enforcement discovered on his laptop. He told the jury he was searching for adult pornography and the illegal images were downloaded without his knowledge. He claimed he had immediately deleted the illegal files upon discovering them.

Based on the verdict rendered, it is apparent the jury rejected appellant's assertion that he had accidentally downloaded the child pornography. We summarize the material trial evidence but provide additional facts later in this opinion when relevant.

I. Appellant Used A Peer-To-Peer File Sharing Program To Download Child Pornography.

Appellant used a peer-to-peer file sharing program to locate and download the child pornography.^[3] Such a program connects a user over a network with other people worldwide. The peer-to-peer program allowed appellant and the other users to exchange files "back and forth anonymously."

With a peer-to-peer file sharing program, an individual does a search, much like a Google search, using file names or keywords. The individual receives a list of file names which can be downloaded. Individual files can be downloaded, or multiple files can be highlighted and simultaneously downloaded. When enough of a particular file has downloaded to the individual's computer, he or she can click on it to preview its contents. The peer-to-peer program will store a partially downloaded file in a temporary folder (called the "Incomplete folder") until the file is completely downloaded. The program then automatically moves the downloaded file to a different folder.

II. Law Enforcement Begins To Investigate Appellant.

Using a Web-based application known as the "Child Protective System" (CPS), law enforcement was monitoring the peer-to-peer network for child pornography. CPS searches for images and videos of known child pornography based on a "digital signature" that exists for each known child pornography file.^[4]

On January 4, 2011, Kevin Wiens was employed with the Fresno County Sheriff's Department, and he was working on a federally funded task force that investigated Internet crimes against children. The task force was housed in the office of the Department of Homeland Security (DHS). Wiens logged into CPS and he located an Internet protocol (IP) address^[5] that was sharing suspected child pornography over the peer-to-peer network. Wiens focused on this address based on the number of files it was sharing "at the time."

Based on the digital signatures, Wiens was able to compare the suspected child pornography files with images from law enforcement's database. Wiens concluded that child pornography existed at that particular IP address.

III. Law Enforcement Seizes Appellant's Laptop.

Using an administrative summons in January 2011, law enforcement discovered the physical address where the suspected child pornography was being shared over the peer-to-peer network. Appellant resided there, and law enforcement obtained two search warrants, one for appellant's vehicle and another for the residence.

On March 30, 2011, law enforcement executed the search warrants, and appellant's laptop was seized. That same day, Wiens did an initial review of the contents of appellant's hard drive. Wiens removed the hard drive from the laptop, and he plugged it into a device that prevents the hard drive from altering its information. Wiens accessed the hard drive by plugging it into his "computer forensic laptop" and he conducted "a preview of the contents of the hard drive utilizing different tools" to determine if evidence of a crime existed. Wiens told the jury that, when he did his initial review of the hard drive, he located files that he recognized to be known child pornography. Appellant's laptop was booked into evidence.

IV. Appellant Admits To Law Enforcement That He Had Viewed Child Pornography.

On the day appellant's laptop was seized, two federal agents, Timothy Kotman and John Kuzma, interviewed appellant in a conference room.^[6] An audio recording of the interview was moved into evidence at trial (People's exhibit 1A) and played for the jury.^[7]

During this interview, the agents informed appellant they were investigating the possession of child pornography. They told appellant that their computers had identified his residence as a possible source. After initially hesitating in providing any information, appellant eventually told the agents they would probably find files on his computer from the day before. He admitted he knew it was "not right. Like, morally I know this is wrong." Kuzma asked appellant if he understood that "real kids" were involved. Appellant answered, "Urn-hum" and explained that after he sees it, "[I]t's like this is wrong. I should not see this."

Appellant told the agents he had used the search term "P-E-D-O" to locate files on the peer-to-peer program. He claimed he did not know why he did it but he was perhaps looking for 16- and 17-year-old girls. He said he "couldn't really find" what he wanted. However, appellant admitted during his interview that some of the files he did find contained children younger than 16 or 17 years of age. He said he did not like that, and he found it "very offensive." Appellant explained he would swipe "a bunch of stuff" and click the download button. According to him, a lot of "random stuff" would come with a download.

Appellant indicated he viewed adult pornography at night, and the frequency of those viewings depended on his level of stress. He stated he would view child pornography in "bursts. Like, it would be a year, and then it would be four or five days, four or five afternoons or evenings, and then it will be gone for six, seven months." He admitted during his interview he had watched child pornography "a couple of times" but he claimed he did not like it. He said he "did it a little bit" that year "and this last year a little bit more," but he did not do it constantly. He stated he had "done it several times, stopped a year or two," but he became "curious again." He told the agents he could not explain why he looked at it.

Appellant told the agents that child pornography did not really arouse him. He stated, "I think I'm going to be, but I'm not." "I look at it and then I-I don't know why I'm looking at it, and I do something else." Appellant explained that some "normal pictures" would get downloaded, too, which he would find "so much better." He would ask himself," 'Why am I looking at this?'" Appellant admitted to the agents he had previously "started to" masturbate to child pornography, but he said, "it doesn't do it for me." He stated, "[I]t's just one of those odd things that I think I'm going to like to see, and I don't." Appellant said he would like to know why he thinks he is going to like it sometimes. He explained to the agents that "99 percent of the time I'll tell you it's wrong."

Kotman asked if appellant had been looking at child pornography "more consistently" in the prior three or four months. Appellant responded, "That's probably- probably when you found it." Appellant continued, "You know, it's been at night and then not, and then a couple nights later did it again."

Appellant said that, if he was downloading a video of a six-year-old girl, he would not finish downloading it. He stated "That would be a delete, click." He said he would "scan" the files he downloaded to see if he was interested in keeping any. He claimed he deleted all child pornography and he did not want to see it. He specifically...