People v. Holford, No. C063540.

CourtCalifornia Court of Appeals
Writing for the CourtMURRAY
Citation203 Cal.App.4th 155,136 Cal.Rptr.3d 713
PartiesThe PEOPLE, Plaintiff and Respondent, v. Curtis HOLFORD, Defendant and Appellant.
Docket NumberNo. C063540.
Decision Date28 March 2012

203 Cal.App.4th 155
136 Cal.Rptr.3d 713

2012 Daily Journal D.A.R. 307

The PEOPLE, Plaintiff and Respondent,
Curtis HOLFORD, Defendant and Appellant.

No. C063540.

Court of Appeal, Third District, California.

Jan. 10, 2012.
As Modified on Denial of Rehearing Feb. 8, 2012.

Review Denied Mar. 28, 2012.

[136 Cal.Rptr.3d 716]Donn Ginoza, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine B. Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.


[203 Cal.App.4th 158]

Defendant Curtis Holford, a registered sex offender, was convicted by jury of possession of child pornography (Pen.Code, § 311.11) for his possession of a video file on a hard drive found in his possession. Following a bifurcated hearing, the trial court found that defendant previously had been convicted of a strike offense within the meaning of the “Three

[203 Cal.App.4th 159]

Strikes” law (Pen.Code, §§ 667, subds. (b)–(i), 1170.12) and that he had also served two prior prison terms (id., § 667.5, subd. (b)). The trial court sentenced defendant to an aggregate term of 14 years in state prison (upper term of six years, doubled pursuant to the Three Strikes law, plus two consecutive one-year terms for the prior prison terms), and imposed other orders.

On appeal, defendant contends: (1) the trial court abused its discretion under Evidence Code section 3521 and also violated his constitutional rights by allowing the jury to view the entire 25–minute video file because, as defendant now contends, there were evidentiary alternatives[136 Cal.Rptr.3d 717]to showing the jury the entire video file; and (2) the trial court further violated his constitutional rights by allowing defendant's daughter to testify about his prior molestation of her.2

[203 Cal.App.4th 160]

We hold that defendant has forfeited the arguments he now makes on appeal regarding the video as he did not proffer a specific excerpt or any other specific evidentiary alternative at trial prior to the video being shown to the jury. Further, any assessment of whether the trial court abused its discretion by admitting the entire video necessarily involves a comparison of the probative value of the evidentiary alternative to the probative value of the entire video and weighing the probative value of each against the purported prejudicial effect. Because defendant failed to identify a specific excerpt or any other specific alternative before the video was shown to the jury, we cannot determine the probative value of such an excerpt or alternative. In the absence of probative value to compare and weigh against any purported prejudicial effect, we cannot find that the trial court abused its discretion. Furthermore, even if we were to consider the recently minted evidentiary alternatives defendant offers on appeal, we [136 Cal.Rptr.3d 718]would not find that the trial court abused its discretion by allowing the entire video. We further hold that the admission of the entire video did not violate due process.

We also hold that admission of evidence concerning defendant's prior molestation of his daughter did not violate due process.

We affirm the judgment.

Child Pornography Evidence

In February 2008, officers conducted a routine parole search of defendant's residence, an apartment he shared with another individual. Defendant led the officers to his bedroom, where they found an external hard drive, one or two Alltel USB wireless cards, and a number of computer software CD's. One of the officers asked defendant if he had any pornography on the hard drive. Defendant responded: “Yes, I do.” At that point, defendant was arrested for violating the terms and conditions of his parole. The officers did not specifically ask defendant whether there was child pornography on the hard drive.

A forensic analysis of the hard drive revealed the existence of child pornography, a video file saved as “Puebla Mexicana Girl” with a running

[203 Cal.App.4th 161]

time of roughly 25 minutes. The hard drive contained approximately 46,000 other files, including roughly 80 video files containing adult pornography, which were saved in folders entitled “Porn” and “Porn DVD.” However, the “Puebla Mexicana Girl” file was saved within the “My Pictures” folder in a subfolder innocuously entitled “Lisa Pics,” which contained only 19 files, 18 of which were nonpornographic images of an adult female.

The Puebla Mexicana Girl file had a “created date” of May 26, 2003. This date could reflect the date the file was downloaded from the Internet onto the hard drive found in defendant's possession. Defendant was incarcerated in state prison from October 2002 to February 2007, and it is undisputed that defendant could not have downloaded the file. However, if the file was transferred to the hard drive from another hard drive as part of a zip file, the created date could be the date the file was initially saved onto the first hard drive, rather than the date it was transferred to the hard drive found in defendant's possession.

The file also had a “last written date” of July 27, 2007. This date refers to the last time the file was modified in some way. By this date, defendant had been released from state prison. The file's “last access date” was January 4, 2008. This date reflects the last time the file was accessed, but not modified—almost a year after defendant's release from prison.

The prosecution's forensic computer examiner estimated that it would take approximately five minutes to transfer the video file to an external hard drive, assuming a newer computer with a faster processor was used. If a computer with a “real slow, old” processor was used, it could have taken as long as 20 minutes.

Evidence of Prior Child Molestation

Defendant's 2002 incarceration was the result of his conviction for committing a lewd act on his 15–year–old daughter, K.H.3 K.H. testified that she was sitting on her father's lap in her grandmother's garage talking about school when he placed his hand under her shirt and touched her breasts. She did not remember whether defendant touched her under [136 Cal.Rptr.3d 719]or over her bra. The conversation stopped. Scared, she remained in his lap for a short period of time while he touched her. Then she got up, stood there for a second not knowing what to do, and then went into the bathroom and locked the door. Defendant followed, knocked on the bathroom door, apologized for his behavior, and then slid a note under the door containing an apology. While in

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the bathroom, she tried to call her mother on the house cordless phone but realized the phone was not working. After about 10 minutes she left the bathroom and walked into a nearby room. However, when defendant followed, she called out for her grandmother. Her aunt came in, after which defendant left.

Defendant sustained a conviction for a violation of Penal Code section 288, subdivision (c), lewd or lascivious acts with a person 14 or 15 by a person at least 10 years older, for the molest on his daughter. While the specific conviction was apparently not introduced into evidence at trial, K.H. testified on cross-examination that defendant went to prison after the molestation and defense counsel acknowledged in closing argument that defendant went to prison for the molestation. The parties stipulated that defendant was confined in state prison from October 21, 2002, to February 25, 2007.

I. The Child Pornography

A. The In Limine Motion

Prior to trial, defendant moved to prevent the jury from viewing the entire “Puebla Mexicana Girl” video. In his written in limine motion, defendant offered to stipulate “regarding the contents of the video; such as that it contains sexual acts performed by a person that appears to be under 18 years of age.” During argument on the motion, counsel for defendant offered to stipulate that “it is, in fact, child pornography.” Defendant did not suggest in his written motion or during oral argument that an abridged version of the video be played as an alternative to showing the jury the entire video.

The prosecutor opposed the motion, pointing out that this was a child pornography case and that the video was the “main evidence” in the case. The prosecutor stated that it was her intention to play the entire 25–minute video. Defense counsel then asked the trial court to view the “extremely graphic” video to determine whether its probative value was substantially outweighed by the danger of undue prejudice to defendant. The prosecutor agreed that the video was extremely graphic, and with that concession, suggested it was unnecessary for the court to review the video.

After expressing concern about requiring the jury to view the video and noting that the scope of defendant's proposed stipulation was unclear, the trial court stated that the extent of the stipulation “certainly weighs in my determination as to how to proceed on the jury viewing the videotape.” However, the court went on to explain that it could not “hamstring” the

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People's ability to prove their case by excluding the video altogether. The court further explained if it “were to disallow the videotape in its entirety, then the jury would be potentially faced with a situation of looking at a case where there's an allegation that the [d]efendant downloaded or possessed, or in some way within the meaning of the statute had a videotape including child pornography.... It would be fairly sanitized. It would be like, So what? People download things from their computer all the time, and we don't really care. [¶] So I think that the People are entitled to present a fair depiction of the [136 Cal.Rptr.3d 720]facts surrounded [ sic ] in the charges to the jury. [¶] The only question I have ... is whether...

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