People v. Garelick

• Decision Date: 08 April 2008
• Docket Number: No. H030976.,H030976.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brian GARELICK, Defendant and Appellant.

74 Cal.Rptr.3d 815

161 Cal.App.4th 1107

The PEOPLE, Plaintiff and Respondent, v. Brian GARELICK, Defendant and Appellant.

No. H030976.

Court of Appeal, Sixth District.

April 8, 2008.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Jeffrey M. Laurence, Deputy Attorney General, for Plaintiff and Respondent.

Carl A. Gonser, under appointment by the Court of Appeal, for Defendant and Appellant.

PREMO, J.

Defendant Brian Garelick was charged by information with an attempted lewd or lascivious act on a child under 14 (Pen. Code, §§ 664, 288, subd. (a)),¹ attempted distribution or exhibition of harmful matter to a minor (§§ 664, 288.2, subd. (b)), and misdemeanor possession of child pornography (§ 311.11, subd. (a)). After a jury trial, Garelick was found guilty on all counts. The trial court suspended imposition of sentence, placed Garelick on three years probation and ordered him to serve 365 days in county jail on the charge of attempted lewd or lascivious act, a consecutive 101 days on the charge of attempted distribution or exhibition of harmful matter, and a concurrent sentence of six months in county jail on the charge of misdemeanor possession of child pornography, with credit for time served.

On appeal, Garelick contends that the trial court committed instructional error and challenges the constitutionality of section 288.2, subdivision (b) (hereafter section 288.2(b)). We reject these arguments and shall affirm..

1. Factual and Procedural Background.

A. Presentation of the evidence

On May 13, 2005, Milpitas Police Sergeant Daryl Sequeria was posing as a 13-year-old girl named Suzzi in an Internet chat room, when he was contacted by Garelick. Garelick sent "Suzzi" an instant message, using the screen name "punkbudy." After Garelick told "Suzzi" that he was a minor, "Suzzi" responded that she was not interested in chatting with him, "because he was basically too young."² Garelick responded that he had an older brother and asked if "Suzzi" would be interested in "talking" to the older brother. When "Suzzi" replied to the effect of "Sure, whatever," Garelick signed out as "punkbudy," signed in again as "TeKnEEk408," and contacted "Suzzi," claiming to be the older brother of "punkbudy."

Garelick informed "Suzzi" that he was 19 years old. The online conversation began to have sexual overtones and Garelick asked "Suzzi" about her past sexual experiences with men. Garelick also admitted that he was, in fact, "punkbudy." Because Garelick had previously been posing as a juvenile online, trying to talk to what he thought was a 13-year-old girl, Sergeant Sequeria prioritized the case and, as "Suzzi," offered to meet with Garelick at a local park. She asked that Garelick bring a specific brand of condoms with him, as well as a specific flavor and brand of chewing gum.

Sergeant Sequeria and other officers set up surveillance at the park. When Garelick arrived at the park, he got out of his car and jogged around, whistling and saying, "Pssst." Officers then approached him and placed him under arrest. In his right front pants pocket, Garelick had a package of the same brand of condoms "Suzzi" had asked him to bring to the park. In Garelick's car, police found a pack of gum-the same flavor and brand that "Suzzi" had asked him to bring-along with handwritten directions to the park.

Garelick consented to police searching his computer, which was retrieved from his house. Upon searching the hard drive, police discovered four images which were identical to images already present on law enforcement databases and identified as suspected child pornography.³ These four images were admitted into evidence at trial as direct evidence to support the possession of child pornography charge.

In addition, police found a number of other "questionable" images that were indicative of child pornography in several different locations on the computer's hard drive. At trial, the People offered, pursuant to Evidence Code section 1101, subdivision (b) (hereafter Evidence Code section 1101(b)), 131 of these other images found on Garelick's computer.⁴ Garelick objected on the grounds that it was possible that these images could have been cached on his computer without him ever viewing them or even knowing they were there.

The trial court eventually admitted 118 of the 131 images taken from Garelick's computer.⁵ Upon the admission of this evidence, however, the trial court advised the jurors that these 118 images had been admitted for a limited purpose and that they would be instructed on how they should receive and evaluate that evidence at the close of the trial.

B. Challenged jury instructions

1. CALCRIM No. 375

At the close of trial, the jury was instructed, pursuant to CALCRIM No. 375, that "[t]he People presented evidence of other behavior by [Garelick] that was not charged in this case that [Garelick] possessed controlled matter allegedly depicting persons under the age of eighteen engaging in or simulating sexual intercourse specifically in People's 8: Images found in My Share folder Owner's Desktop folder, Internet cache and drive free space, [f] You may consider this evidence only if the People have proved by a preponderance of the evidence that [Garelick], in fact, committed the uncharged acts. Proof by a preponderance of the evidence is a different [burden of] proof than proof beyond a reasonable doubt, [¶] A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that [Garelick] committed the uncharged act, you may but are not required to consider the evidence-that evidence for the limited purpose of deciding whether or not [Garelick] acted with the intent to attempt to commit a lewd act upon a child under 14 or attempt to send harmful matter to a minor; [Garelick] had a motive to commit the offenses alleged in this case or [Garelick] knew the existence of child pornography on a mass storage device when he allegedly acted in this case or [Garelick] had a plan to commit the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. Do not conclude from this evidence that [Garelick] has a bad character or is disposed to commit a crime. If you conclude that [Garelick] committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. [¶] It is not sufficient by itself to prove [Garelick] is guilty of counts one, two, and three. The People must still prove each element of every charge beyond a reasonable doubt."

Before this instruction was given, Garelick's counsel argued that it should be modified to require the jury to make a preliminary finding of fact as to whether or not the "alleged other behavior was committed with the required specific intent or mental state" before it could consider the evidence in question. The trial court refused the proposed modification.

2. CALCRIM No. 220

The trial court also gave the following modified CALCRIM No. 220 instruction: "The fact that a criminal charge has been filed against [Garelick] is not evidence that the charge is true. You must not be biased against [Garelick] just because he has been arrested, charged with a crime or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. [¶] The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [¶] Unless the evidence proves [Garelick] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."

Garelick objected to CALCRIM No. 220 as given and requested that the court instruct the jury that the reasonable doubt standard must apply to every fact and element necessary to prove the crime. Garelick also requested that the trial court give guidance to the jury as to the meaning of the phrase "abiding conviction," and suggested that the trial court instruct the jury that "[a]n abiding conviction based upon proof beyond a reasonable doubt is the highest level of certainty recognized in the law." Again, the trial court rejected defense counsel's suggested modifications.

II. DISCUSSION.

A. The trial court did not err by failing to modify CALCRIM No. 375 as requested

On appeal, Garelick renews his argument that the trial court should have instructed the jury that, before it could consider the 118 images found on his computer as evidence of intent, motive, preparation or plan under Evidence Code section 1101(b), it should make a preliminary finding of fact that he possessed or controlled the images with the "required specific intent or mental state" to violate section 311.11.

Subject to the trial court's discretion under Evidence Code section 352, evidence of a defendant's uncharged acts may be admitted into evidence under Evidence Code section 1101(b) when relevant to prove some fact, such as motive, intent, preparation, or plan, other than his disposition to commit such an act. Such evidence of other uncharged crimes may be introduced once its proponent establishes, by a preponderance of evidence, both the fact of the...