People v. Wilson

Filed 10/21/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074992

Plaintiff and Respondent,

v. (Super. Ct. No. SCD263466)

LUKE NOEL WILSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Esteban Hernandez, Judge. Affirmed.

Charles M. Sevilla, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.

Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and

Respondent.

After the trial court denied his pretrial motion to suppress evidence

obtained without a warrant, a jury convicted Luke Noel Wilson of one count

of oral copulation of a child 10 years or younger (Pen. Code, § 288.7,

subd. (b))1 and three counts of committing a lewd act upon a child (§ 288,

subd. (a)), further finding true the allegations that two counts were

committed against more than one victim. (§ 667.61, subds. (b), (c), and (e).)

The court sentenced Wilson to an indeterminate prison term of 45 years to

life.

Wilson appeals, contending (1) the trial court erred in denying his

motion to suppress; (2) the evidence was insufficient to support his

convictions under section 288, subdivision (a); (3) he was denied his due

process right to notice of the nature of the charges against him; (4) the

prosecution knowingly introduced false evidence at trial; (5) the prosecution

failed to produce exculpatory evidence before trial in violation of Brady v.

Maryland (1963) 373 U.S. 83 (Brady); (6) the trial court’s jury instructions

and answers to jury questions were incomplete, misstated the law, and were

unduly prejudicial; (7) prosecutorial misconduct and the court’s failure to

address the misconduct denied him his right to a fair trial; (8) the mandatory

sentence was cruel and/or unusual as applied to Wilson; and (9) cumulative

error. We conclude Wilson’s contentions lack merit. Accordingly, we affirm

the judgment.

FACTUAL BACKGROUND

For purposes of this section, we state the evidence in the light most

favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690;

People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be

discussed where relevant in the following sections.

Using a website where women posted photos with the hopes of finding

modeling and acting jobs, Wilson contacted an 18-year-old woman and hired

1 All further statutory references are to the Penal Code unless otherwise

specified.

2

her to pose for a photo shoot. The woman was fully clothed in the initial

photo shoot, but over time Wilson persuaded her to first pose partially nude

and, eventually, fully nude in hotel rooms after plying her with alcohol and

paying her to pose.

The woman later introduced Wilson to her younger sister, J.A., who

was only 15 years old at the time. Wilson paid the two sisters to pose, fully

clothed, for photographs together in Balboa Park.

At the Balboa Park photo shoot, Wilson asked J.A. for her phone

number and began contacting her separately from her sister. J.A. later

agreed to another photo shoot, this time in a hotel room in lingerie.

Thereafter, Wilson continued to send her “proposals” via e-mail, text

message, or a texting “app” for photo shoots, detailing how much he would

pay her to pose in certain ways. Over time, but while she was still a minor,

Wilson progressed to paying J.A. to pose for nude and sexually explicit

photos. Providing J.A. with alcohol to get her “more settled and calm,”

Wilson eventually paid J.A. to let him film her while he performed sexual

acts and while she used sex toys on herself or allowed him to use the same

toys on her body. These “photo shoots” occurred when J.A. was 15 or 16 years

old. After the photo shoots, Wilson sent the photos to J.A., who testified that

she liked the way she looked in the photos. By the time J.A. was 16 or

17 years old, Wilson was paying her to have sexual intercourse with him

while he filmed the encounter. Occasionally, during photo shoots, Wilson

would show J.A. child pornography.

When J.A. was 17, she became pregnant with her boyfriend (not

Wilson). She gave birth to her daughter in late 2013, after she turned 18 and

shortly after her high school graduation.

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J.A. continued to do photo shoots with Wilson while she was pregnant.

The photo shoots with Wilson, including nude photo shoots and filming

during sexual acts, also continued after J.A. gave birth to her daughter.

Around the same time, J.A. lost her job and was no longer working. She

continued to accept payments from Wilson to perform in photo shoots,

explaining that she could make the same amount of money in exchange for

one photo shoot that she would earn working for two weeks at her previous

part-time job.

Wilson later paid J.A. to send him a video of her having sex with her

boyfriend. Over time, Wilson progressed to suggesting a proposal of paying

J.A. to take photos of her touching her infant daughter. When her daughter

was about nine months old, J.A. accepted a proposal from Wilson to pay her

to take a photo with her hand on her daughter’s buttocks and send it to him.

Thereafter, Wilson offered to pay J.A. to send him photos or videos showing

her orally copulating her daughter. J.A. again accepted the proposal and sent

Wilson a minute-long video.

Wilson was also aware that J.A. often babysat her young cousin.

Wilson began making offers to J.A. for her to touch her cousin in exchange for

several hundred dollars. When the girl was about five years old, J.A. agreed

to do so, sending Wilson photos of her touching her cousin’s bare buttocks.

J.A. admitted to knowing at the time that what she was doing was

wrong. Despite this knowledge, she continued to communicate regularly with

Wilson without expressing any opposition. She admitted she never contacted

the police, even after Wilson escalated to asking J.A. to perform and film

sexual acts on minors. Instead of objecting, J.A. reacted with enthusiasm,

responding to his proposals with e-mails full of exclamation points and

frequently used the slang “lol,” meaning “laugh[ing] out loud,” in response to

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his extreme proposals. When Wilson asked her to perform oral copulation on

two other minor girls, J.A. responded that she would do it and suggested,

“Let’s do [it] ASAP lol.” Later, Wilson sent her photographs of a young girl

that he wanted J.A. to perform with, to which J.A. responded “Lol aw she’s

soo small and cute lol.”2

Several months later, J.A. declined Wilson’s offers for additional photos

of the young girls, claiming she felt guilty and was no longer comfortable with

the idea. However, J.A. continued to communicate with Wilson up to the

date of her arrest and participated in solo photo shoots for him.

In August 2015, J.A. was contacted by federal law enforcement and

initially denied knowing Wilson or participating in his photo shoots. When

confronted with the photos of her daughter, J.A. admitted the truth and

began cooperating.

J.A. was initially charged with multiple offenses, but accepted a plea

agreement wherein she pleaded guilty to four counts of felony child abuse

(§ 273a, subd. (a)) and was sentenced to 10 years of probation.

As detailed ante, part of Wilson’s course of conduct included offering to

pay for photographs depicting lewd acts with minors, receiving the resulting

photographs, and then distributing those photographs. Wilson used his

“Gmail” e-mail account, hosted by Google, to communicate with the women.

The Google Terms of Service specify that users may only use the Google

2 The record suggests J.A. never completed these acts involving girls

other than her daughter and her cousin despite her willingness to do so.

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services as “permitted by law.”3 Google informs users that it “may review

content to determine whether it is illegal or violates our policies, and we may

remove or refuse to display content that we reasonably believe violates our

policies or the law. But that does not necessarily mean that we review

content, so please don’t assume that we do.”

Google, on its own initiative, took steps to ensure its systems were free

of illegal content, particularly child sexual abuse material. Since 2008,

Google has used a screening process utilizing a proprietary “hashing”

technology to identify apparent child sexual abuse images on its services.

Trained Google employees use software to generate a “hash” value for any

image file they find depicting child pornography. The hash value is

generated by a computer algorithm and consists of a short alphanumeric

sequence that is considered unique to the computer file.4 (Power of the Hash,

supra, 119 Harv. L.Rev.F. at p. 39.) The resulting hash values are then

added to a repository. The repository therefore contains hash values, not the

actual child pornography images.

When a user uploads new content to its services, Google automatically

scans and generates hash values for the uploaded files and compares those

hash values to all known hash values in the repository. If Google’s system

3 In support of the People’s opposition to the motion to suppress, a

Google employee submitted a declaration with the Google Terms of Service

attached as an exhibit. The record contains no indication of whether Wilson

reviewed these terms or was otherwise aware of their content. We resolve

this case without addressing the terms of service.

4 By way of example, the hash value for a file produced by Google in this

case is “73500566f447032d5137a91e931204eb.” Such a hash value is unique

to the file, but cannot be “ ‘reversed’ ” to generate the contents of the file

itself. (Salgado, Fourth Amendment Search and the Power of the Hash (2005)

119 Harv. L.Rev.F. 38, 40 (hereinafter Power of the Hash.)

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detects a match between a hash value for uploaded content and a hash value

in the repository for a file which was previously identified as containing

apparent child pornography, the system generates a report to be sent to the

National Center for Missing and Exploited Children (NCMEC) in the form of

a “Cybertip.”5 In some cases, Google sends the report without opening the

image file, while in other cases a Google employee opens the image for

manual review to confirm it contains apparent child pornography.

In June 2015, Google’s system identified four image files, each with

hash values matching values for apparent child pornography images in its

repository, attached to an e-mail created by the Gmail account later

identified as belonging to Wilson.6 Google generated a Cybertip report to

NCMEC identifying and forwarding the four image attachments. The report

included only the four image files, not the e-mail body text or any other

information specific to the e-mail. Google classified the images, using a

common categorization matrix, as “A1,” indicating they depicted

prepubescent minors engaged in sex acts. The report reflected that a Google

employee did not manually review the files after they were flagged using

Google’s hashing technology, and before sending them to NCMEC.

5 Under federal law, NCMEC is statutorily obligated to serve as a

national clearinghouse and maintain a tip line for internet service providers

to report suspected child sexual exploitation violations. (See, e.g., United

States v. Ackerman (10th Cir. 2016) 831 F.3d 1292, 1296 (Ackerman);

18 U.S.C. § 2258A(c).) NCMEC is statutorily obligated to forward those

reports, known as “Cybertips,” to federal law enforcement and may, and often

does, forward the reports to state and local law enforcement. (Ackerman, at

p. 1296.)

6 Although Google explains that its search is entirely voluntary and

serves its own non-governmental interests, it has a duty under federal law to

report apparent child pornography to the NCMEC once it obtains actual

knowledge of such content. (18 U.S.C. § 2258A, subd. (a).)

7

When it received the report from Google, NCMEC did not open or view

the image files, but forwarded the report to the San Diego Internet Crimes

Against Children (ICAC) task force after it determined the internet address

associated with the Gmail account was in San Diego. The ICAC task force is

an office comprised of individuals from multiple agencies, including the

federal Department of Homeland Security and local law enforcement. When

ICAC received the report, an administrative assistant with the San Diego

Police Department printed the report with the attached electronic images,

and provided them to two ICAC investigators. Those investigators viewed

the images and determined the images warranted an investigation. An ICAC

sergeant conducted his own review and agreed with that recommendation.

Using the information contained in the report and based on his review

of the images, an ICAC investigator obtained a search warrant to obtain from

Google all content and user information associated with the identified Gmail

address. The investigator’s affidavit establishing probable cause for the

warrant was premised entirely on the investigator’s viewing of the images

and did not discuss Google’s proprietary hash value technology, the

underlying hash value match performed by Google, or even a general

overview of this type of computerized matching system.

The warrant resulted in the discovery of Wilson’s e-mails offering to

pay J.A. to molest and exploit children. The investigator also reviewed

e-mails in which Wilson distributed apparent child pornography to others.

Using the information received from Google and from Wilson’s internet

service provider to identify Wilson, the investigator then obtained a search

warrant for Wilson’s apartment and vehicle, and to seize computer

equipment, storage devices, and other effects. While executing the search

warrant, a participating officer observed a backpack fall from Wilson’s

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balcony. The officer retrieved the backpack, which held Wilson’s checkbook

and a thumb drive containing thousands of images of child pornography.

Additional images were found on devices in Wilson’s apartment.

Using information gleaned from Wilson’s e-mails produced in response

to the search warrant, the investigator was able to identify and locate the

woman (J.A.) Wilson paid to perform the sex acts and send him some of the

photographs. The investigator obtained additional warrants to search her

residence and online accounts, leading to additional evidence used in Wilson’s

prosecution.

PROCEDURAL HISTORY

Before trial, Wilson filed a motion to suppress evidence pursuant to

section 1538.5. Wilson argued the warrantless “search” of the e-mail

attachments was illegal, requiring the suppression of those images and all

evidence obtained indirectly from the initial warrantless search, including all

of his e-mails, the e-mails of the woman who sent him the images, and the

evidence recovered from his home.

At the hearing on the suppression motion, both parties stipulated to the

admission as evidence of a declaration by a Google employee explaining

Google’s hashing and reporting process, that any testimony she would have

offered would be the same as the contents of her declaration, and to the

admission into evidence of the Google Terms of Service attached to her

declaration. The parties also stipulated that Wilson had a subjective

expectation of privacy in his e-mail account.

William Thompson, the ICAC investigator who reviewed Wilson’s

e-mail attachments and sought the search warrants, testified about his

investigation. Thompson acknowledged that neither Google nor NCMEC

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opened the image files attached to the e-mail. Thompson did not obtain a

warrant before viewing the attachments.

Thompson also explained that in early 2017, ICAC changed its process

relating to Cybertips with file attachments when the electronic service

provider indicates it did not open the image files. Now, rather than

immediately printing out the images and viewing them, the attached files are

locked and ICAC first obtains a search warrant to view the attachments.

A computer forensic agent working for the Department of Homeland

Security testified about the hashing process. He opined that it would be

“almost inconceivable” for two files to have the same hash value if the files

were not exactly the same. Using an example of one commonly-used hash

value algorithm, he explained the odds of matching hash values for different

files would be “something like 340 billion, billion, billion, billion to one.”

The court denied the motion to suppress. As the court explained, “it

appears that the crux of the motion is that the visual inspection of the images

that were flagged by Google’s proprietary hashing technology and whether or

not it expanded beyond Google’s private search and therefore would require a

warrant of searching.” The court found that Wilson had no reasonable

expectation of privacy in the use of an e-mail account with Google for

“misconduct or unlawful conduct.” The court explained that “bottom line

when these kind of internet tools are used[,] [t]he tools have to be used in a

lawful manner. And the terms of service alerts the users that Google may

investigate this conduct or suspecting this conduct.”

The court also found that no search under the Fourth Amendment

occurred because law enforcement simply repeated the private search

performed by Google. Acknowledging no employee at Google opened the file

to look at the photos, the court found the opening of the photos was not a

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significant expansion of Google’s private search because “Google had

previously confirmed that each of the four images in defendant’s e-mail was

child pornography. Special Agent Thompson already knew before visually

examining the images, the court can reasonably infer from the A1

classification, that each of the four images depicted a prepubescent minor

engaged in [a] sex act.” Thus, the court concluded that the investigator was

certain that he would not learn anything by opening the attachment that

“had not previously been learned during the private search,” such that

opening the attachments and viewing the images did not constitute a search.

After the preliminary hearing, the district attorney filed an information

charging appellant with four offenses. Count One, alleging a violation of

section 288.7, subdivision (b) for the oral copulation of a child of 10 years old

or younger, was premised on Wilson paying J.A. to orally copulate her

daughter. Count Two alleged a violation of section 288, subdivision (a) for

the lewd and lascivious touching of a minor arising from the same incident as

Count One. Counts Three and Four also alleged violations of section 288,

subdivision (a), and were premised on J.A.’s touching of her daughter’s and

cousin’s buttocks on separate occasions. Counts Two, Three, and Four also

alleged that Wilson committed the acts against more than one victim within

the meaning of section 667.61, subdivisions (b), (c), and (e).

Following trial, the jury found Wilson guilty of all counts and found

true the enhancement allegations pursuant to section 667.61,

subdivisions (b), (c), and (e) as to two counts. The court denied Wilson’s

motion for new trial and sentenced Wilson to an indeterminate prison term of

45 years to life.

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DISCUSSION

I

Motion to Suppress: Private Search Doctrine

A. Standard of Review

“ ‘In reviewing a trial court’s ruling on a motion to suppress evidence,

we defer to that court’s factual findings, express or implied, if they are

supported by substantial evidence. [Citation.] We exercise our independent

judgment in determining whether, on the facts presented, the search or

seizure was reasonable under the Fourth Amendment.’ ” (Robey v. Superior

Court (2013) 56 Cal.4th 1218, 1223 (Robey).) “Thus, while we ultimately

exercise our independent judgment to determine the constitutional propriety

of a search or seizure, we do so within the context of historical facts

determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952, 979.)

Here, the underlying facts surrounding the search were not in dispute.

Thus, we exercise our independent judgment in answering whether the

search was permissible under the Fourth Amendment.

B. Governing Law

“ ‘The Fourth Amendment proscribes all unreasonable searches and

seizures, and it is a cardinal principle that “searches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.” ’ ” (Robey, supra,

56 Cal.4th at p. 1224.)

But the Fourth Amendment does not apply to private searches.

(Burdeau v. McDowell (1921) 256 U.S. 465, 475 [finding that the “origin and

history [of the Fourth Amendment] clearly show that it was intended as a

restraint upon the activities of sovereign authority, and was not intended to

12

be a limitation upon other than governmental agencies”]; People v. North

(1981) 29 Cal.3d 509, 514 [“Historically, courts have consistently held that

the Fourth Amendment’s prohibition against unreasonable search and

seizure does not apply to searches by private citizens.”].) Additionally, if a

government search is preceded by a private search, the government search

does not implicate the Fourth Amendment as long as it does not exceed the

scope of the initial private search. (United States v. Jacobsen (1984) 466 U.S.

109, 115-117 (Jacobsen); see Walter v. United States (1980) 447 U.S. 649, 657

(Walter).)7

The parameters of this private search doctrine—relied upon by the

Attorney General here—were discussed by the United States Supreme Court

in Jacobsen. In that case, FedEx employees opened a package which had

been damaged in transit. (Jacobsen, supra, 466 U.S. at p. 111.) The

employees inspected the torn package, removed and cut open a tube found

inside, and discovered plastic bags containing a suspicious white powdery

substance. (Id. at pp. 111, 115.) The employees repackaged the shipment’s

contents and contacted federal law enforcement agents with the Drug

Enforcement Administration (DEA). (Id. at pp. 111-112.) The agents

inspected the partially open container, removed the contents, opened the

plastic bags, and removed a small quantity of the powder to perform a field

chemical test, which identified the substance as cocaine. (Ibid.)

The defendant challenged the agents’ opening of the package and

testing of the powder as a warrantless search in violation of his Fourth

7 “Although the Fourth Amendment does not apply to a search or

seizure, even an arbitrary one, effected by a private party on his own

initiative, the Amendment protects against such intrusions if the private

party acted as an instrument or agent of the Government.” (Skinner v. Ry.

Labor Execs. Ass’n (1989) 489 U.S. 602, 614.) No argument has been made

that Google was an “instrument or agent” of the government here.

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Amendment rights. (Jacobsen, supra, 466 U.S. at p. 112.) In concluding no

Fourth Amendment violation occurred, the Supreme Court first explained

that the private search conducted by the FedEx employees did not implicate

the Fourth Amendment. (Id. at p. 115 [“Whether [the initial invasions by the

FedEx employees] were accidental or deliberate, and whether they were

reasonable or unreasonable, they did not violate the Fourth Amendment

because of their private character.”], fn. omitted.) The Court then explained

that “[t]he additional invasions of [the defendant’s] privacy by the

[g]overnment agent must be tested by the degree to which they exceeded the

scope of the private search.” (Ibid.) The Court reasoned that “[o]nce

frustration of the original expectation of privacy occurs, the Fourth

Amendment does not prohibit governmental use of the now nonprivate

information,” and “[t]he Fourth Amendment is implicated only if the

authorities use information with respect to which the expectation of privacy

has not already been frustrated.” (Id. at p. 117.)

Applying these principles, the Court held that the government’s

actions—in examining and then later testing the white powder—did not

violate the Fourth Amendment. Since the agent’s “removal of the plastic

bags from the tube and the agent’s visual inspection of their contents enabled

the agent to learn nothing that had not previously been learned during the

private search,” the Court held it “infringed no legitimate expectation of

privacy and hence was not a ‘search’ within the meaning of the Fourth

Amendment.” (Jacobsen, supra, 466 U.S. at p. 120.) The Court observed

that, even though the white powder was not in plain view because it was still

enclosed in some packaging, “there was a virtual certainty that nothing else

of significance was in the package and that a manual inspection of the tube

and its contents would not tell [the agent] anything more than he already had

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been told” by the FedEx employees. (Id. at p. 119.) In other words, the

government’s actions merely confirmed the FedEx employees’ recollection

concerning the contents of the package. (Ibid.) “The advantage the

[g]overnment gained thereby was merely avoiding the risk of a flaw in the

employees’ recollection, rather than in further infringing respondents’

privacy. Protecting the risk of misdescription hardly enhances any legitimate

privacy interest, and is not protected by the Fourth Amendment.” (Ibid.)

Similarly, with respect to the field test, the Court held that testing the

substance did not violate the Fourth Amendment because a “chemical test

that merely discloses whether or not a particular substance is cocaine does

not compromise any legitimate interest in privacy,” and therefore does not

constitute a search. (Jacobsen, supra, 466 U.S. at p. 123.) As the Court

explained: “Congress has decided—and there is no question about its power

to do so—to treat the interest in ‘privately’ possessing cocaine as illegitimate;

thus governmental conduct that can reveal whether a substance is cocaine,

and no other arguably ‘private’ fact, compromises no legitimate privacy

interest.” (Ibid.) The Court concluded that “the likelihood that official

conduct of the kind disclosed by the record will actually compromise any

legitimate interest in privacy seems much too remote to characterize the

testing as a search subject to the Fourth Amendment.”8 (Id. at p. 124.)

C. Application of the Private Search Doctrine

Wilson contends the private search doctrine does not apply here and,

even if it does, the government “far exceeded the scope of Google’s automated

8 The Court compared the government’s field testing to the government’s

canine sniff of luggage in United States v. Place (1983) 462 U.S. 696, 707,

which was held not to be a search because a sniff can disclose only the

presence or absence of contraband. (Jacobsen, supra, 466 U.S. at pp. 123-

124.)

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hash match.” Applying the principles set forth in Jacobsen, we reject

Wilson’s claims and conclude the government’s actions did not violate the

Fourth Amendment.

We begin by examining Google’s actions. To summarize, Google has a

team of employees who are trained on how to recognize child pornography

and, since 2008, Google has used a computerized “hashing technology” to

assist in this process. At least one Google employee reviews an offending

child pornography image before it is assigned a unique hash value, or a

“digital fingerprint,” that is then stored in Google’s repository of hash values.

Google then scans all user content uploaded to its services and compares the

content to the repository of hash values to identify any duplicate images of

apparent child pornography as defined under 18 U.S.C. section 2256. Other

users can also flag suspicious content and bring it to Google’s attention, but

“[n]o hash is added to [Google’s] repository without the corresponding image

first having been visually confirmed by a Google employee to be apparent

child pornography.” When this process yields a match in hash values—i.e.,

the hash value of a user’s content matches a hash value corresponding with

child pornography viewed by Google and stored in its repository—Google

prepares a report to send to NCMEC. In some cases, a Google employee

manually looks at the user content. In other cases, Google reports the user to

NCMEC without again viewing the image whose hash value matches a hash

value in its repository.

In this case, Wilson uploaded four offending images (photographs)

using Google’s services. Utilizing its scanning process and specifically its

“hashing technology,” Google determined that the content constituted child

pornography and classified the content as “A1,” indicating “that the content

contained a depiction of prepubescent minor engaged in a sexual act.” Google

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submitted a report, along with the four photographs, to NCMEC. It did not

include “any email body text or header information associated with the

reported content.” As in other cases where a Google employee has already

reviewed an offending image in the past, in this case a Google employee did

not re-review Wilson’s photographs concurrently to submitting the report to

NCMEC. Google also did not review the content of the e-mail message to

which the images were attached. Around the same time that it submitted the

report to NCMEC, Google terminated Wilson’s account.

All of Google’s actions—including scanning user content, assigning

hash values to that content, comparing user content to a repository of hash

values, flagging offending images with hash values that match previously-

reviewed child pornography images, and sending the apparent child

pornography to NCMEC—constitute private action that was not performed at

the direction of the government.9 The Fourth Amendment’s protection “is

wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected

by a private individual not acting as an agent of the [g]overnment or with the

participation or knowledge of any governmental official.’ ” (Jacobsen, supra,

466 U.S. at pp. 113-114.) As such, no violation of the Fourth Amendment

occurred as a result of Google’s private actions.

The government’s subsequent actions—consisting of opening the

electronic files submitted to it by NCMEC and viewing the four images

attached to Google’s Cybertip—did not exactly replicate Google’s private

actions. Applying Jacobsen, we therefore consider the degree to which the

agent’s additional invasions of Wilson’s privacy exceeded the scope of Google’s

9 Google was not aware of any investigation involving Wilson prior to

submitting its report to NCMEC. As previously indicated, Wilson does not

contend that Google or NCMEC were acting as governmental agents in this

case.

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private search. (Jacobsen, supra, 466 U.S. at p. 115.) Before the government

even received Wilson’s photographs, Google had already reviewed identical

images in the past; scanned all of Wilson’s electronic communications to

search for content with matching hash values; flagged four of Wilson’s images

as matching images Google had previously observed; classified the matching

images as A1, indicating they depicted prepubescent minors engaged in

sexual acts; forwarded all four images to NCMEC as part of a Cybertip

report; and terminated Wilson’s account. As the Court explained in Jacobsen,

“[t]he Fourth Amendment is implicated only if the authorities use

information with respect to which the expectation of privacy has not already

been frustrated.” (Id. at p. 117.) Because Google’s actions, outlined above,

frustrated any expectation of privacy Wilson possessed in the four

photographs at issue, the government was free to use this now nonprivate

information without violating the Fourth Amendment. (Ibid.)10 No privacy

interest remained in the four images following the private search by Google.

The agent in this case did not violate the Fourth Amendment when he

opened and viewed the four photographs, just as the government did not

violate the Fourth Amendment when it examined and later tested the white

powder in Jacobsen. The DEA agent’s removal of the plastic bags and his

visual inspection of their contents in Jacobsen enabled him to “learn nothing

that had not previously been learned during the private search.” (Jacobsen,

supra, 466 U.S. at p. 120.) Based on the FedEx employees’ testimony, it was

virtually certain that the package contained nothing else of significance that

the agents had not already learned from the private employees. The

10 We assume without deciding that Wilson had a legitimate expectation

of privacy in the computer images at issue under the Fourth Amendment.

We do not need to address the question of whether Google’s terms of service

negated any reasonable expectation of privacy.

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government was merely confirming the FedEx employees’ account regarding

the suspected contents of the package. (Id. at p. 119.) Similarly, in this case,

opening and viewing the four photographs merely enabled the government to

confirm what Google had already conveyed through the Cybertip it generated

after using its hashing technology—that the four images were suspected of

constituting child pornography. The government did not further infringe on

Wilson’s privacy, but rather guarded against the risk that Google’s report

was wrong. (Ibid.)

We acknowledge this case differs from Jacobsen insofar as the

technology and procedures that were used by the parties. Unlike Jacobsen,

where the FedEx employees visually observed and handed over the same

white substance that was later tested by the government, in this case a

Google employee did not contemporaneously view Wilson’s four photographs

before sending them to NCMEC. But we conclude Jacobsen still applies

despite these differences resulting from the use of Google’s hashing

technology. A Google employee did review identical user content—which

matched each of Wilson’s four images—although this review occurred at some

point in the past rather than contemporaneously with the Cybertip report. A

“digital fingerprint” was assigned to each of the four images, meaning that

Wilson’s four images were identical to those in Google’s repository of hash

values, and no hash values are stored in Google’s repository unless at least

one Google employee has viewed the content and confirmed it constitutes

19

apparent child pornography.11 Google did not turn over anything else other

than the discrete set of four matching images attached to the Cybertip report;

it did not include any larger “files” from which the images were extracted (if

any) and it did not include any e-mail body text or header information

associated with any of Wilson’s files. (Cf. Ackerman, supra, 831 F.3d at

pp. 1305-1306 [government agent expanded AOL’s private party search

because, in addition to opening the attachment that had been flagged as

having a matching hash value, it also opened an e-mail and three other

attachments that AOL had not opened or processed through its hash value

system].) The government was merely reviewing what Google had already

found, but in a different format—visually reviewing the photographs with the

agent’s human eyes versus replicating the computer’s generation of a

numerical algorithm. Because the assigned numerical values, or “digital

fingerprints,” are representative of the contents depicted in the photographs

themselves, the government gained no new material information by viewing

11 Google explains that a comparison of these “digital fingerprints” allows

it “to identify duplicate images of apparent child pornography to prevent

them from continuing to circulate on [its] products.” (Italics added.) Other

courts and commentators similarly describe hash matching as a highly

accurate technology. (See, e.g., United States v. Reddick (5th Cir. 2018)

900 F.3d 636, 639 (Reddick) [“[H]ash value comparison ‘allows law

enforcement to identify child pornography with almost absolute certainty.’ ”];

Power of the Hash, supra, 119 Harv. L.Rev.F. at p. 39 [explaining hash

algorithms are designed to be “uniquely associated with the input,” such that

no two files will have matching values “except a file that is identical, bit-for-

bit”].)

20

the images. The agent merely confirmed Google’s report that Wilson

uploaded content constituting apparent child pornography. 12

In sum, the government’s warrantless search of Wilson’s four images

was permissible under the private search doctrine. Google’s private search

frustrated Wilson’s expectation of privacy in the files before they were viewed

by the government. Google had already identified Wilson’s files as having

matching hash values to images that had previously been viewed and

identified by a Google employee as apparent child pornography. The

government’s subsequent opening and viewing of the four photographs did

not significantly expand on the search that had previously been conducted by

Google. The agent’s actions in opening the files and viewing the images

merely confirmed that the flagged files were child pornography, as reflected

in Google’s Cybertip report.

D. Defendant’s Arguments Regarding the Private Search Doctrine

Wilson’s arguments against application of the private search doctrine

are not persuasive. We address these arguments in turn.

12 As previously noted, Jacobsen also separately discussed the

government’s field test—concluding the testing of the white substance did not

constitute a search within the meaning of the Fourth Amendment.

(Jacobsen, supra, 466 U.S. at pp. 122-123.) Because the same cannot be said

for the agent’s actions in opening and viewing Wilson’s digital images (i.e.,

these actions do constitute a search), this part of the Jacobsen decision does

not directly apply here. To the extent it does apply, the Court’s reasoning

further supports our conclusion that the government did not violate Wilson’s

Fourth Amendment rights. Just as the chemical test could reveal whether

the substance was cocaine, and no other arguably private fact, the agent’s

visual observations here merely confirmed the presence or absence of

suspected child pornography. The fact that the confirmation occurred

through the use of the agent’s own eyes in this case, versus the chemical

testing in Jacobsen, does not make the private search doctrine inapplicable.

21

Wilson contends the private search doctrine does not apply at all

because Google’s use of its hashing technology does not “qualify as a private

search under the Fourth Amendment.” Wilson reasons that only humans can

frustrate one another’s reasonable expectations of privacy and, because

Google’s hashing process is automated and no human looked at Wilson’s

e-mail attachments until the agents did, no private search occurred at all and

Wilson’s privacy interests remained intact. We reject Wilson’s narrow view of

the process employed by Google here. Wilson’s assertion that “[n]o human

looked at [his] email attachments until the agents did,” and his related claim

that Google employed a “machine scan with no human involvement,” does not

accurately account for the multi-step process used by Google here. A

computer program was used, but it did not occur without “human

involvement” or “human participation.” As already discussed, Google trains

employees who are responsible for identifying child pornography on its

systems. No image is assigned a hash value and added to Google’s repository

of hash values associated with apparent child pornography unless an

employee first looks at the actual image and confirms its contents. If

someone uploads content that is scanned and determined to have a matching

hash value, a Google employee then takes that flagged image and submits it

to NCMEC in the form of a Cybertip. In addition to flagging the file as

suspected child pornography based on its matching hash value, Google

classifies the file’s contents based on the initial employee review of an

identical duplicate image. In some cases, a Google employee looks at the

duplicate image before sending it to NCMEC. But in other cases, as here, a

Google employee does not perform this redundant step. In either case,

Google’s actions in reviewing, scanning, and flagging user content—and

assigning hash values to users’ files—are properly viewed in their entirety as

22

equivalent to a private search which frustrated any reasonable expectation of

privacy in the subject files. (See Reddick, supra, 900 F.3d at p. 637 [a private

company’s determination, using an automated computer program, that the

hash values of defendant’s uploaded files corresponded to the hash values of

known child pornography images, constituted a private search for Fourth

Amendment purposes].)13

Citing Riley v. California (2014) 573 U.S. 373 and Carpenter v. United

States (2018) 138 S.Ct. 2206, Wilson next contends that the United States

Supreme Court is unwilling to “extend established Fourth Amendment

doctrines in the face of technological innovations that permit greater privacy

intrusions.” In Riley, the Supreme Court held that a warrant is generally

required before the police may search an arrestee’s cell phone incident to

arrest. (Riley, at p. 401.) In Carpenter, the Court held that the Fourth

Amendment required a warrant for the automated search of historical cell

site location information covering an extended period of time. (Carpenter, at

pp. 2217, 2221.) Both cases referenced privacy concerns implicated by

emerging technology. (See Riley, at pp. 393-395 [explaining that cell phones

have an “immense storage capacity,” which allows people to carry a “cache of

sensitive personal information” with them]; Carpenter, at p. 2220 [explaining

that, with cell site location information technology, the wireless carrier holds

a “detailed chronicle of a person’s physical presence compiled every day, every

moment, over several years”].) But neither case assists Wilson here. The

13 Had the government itself engaged in this type of expansive review of

user content (and in particular, a user’s e-mails) without a warrant, there is

little doubt it would be considered a search under the Fourth Amendment.

(See United States v. Warshak (6th Cir. 2010) 631 F.3d 266, 285-286

[applying Fourth Amendment protection to e-mail contents]; see also Kyllo v.

United States (2001) 533 U.S. 27, 40 [concluding that the use of a thermal

imaging technology constituted an unlawful search].)

23

present case does not involve the government’s use of technological

advancements which pose a threat to a defendant’s Fourth Amendment

rights. It involves a private search which does not implicate the Fourth

Amendment at all. Even if we assume these cases suggest caution in

applying the private search doctrine to digital devices such as cell phones or

computers, we are not faced with that situation here. The government did

not review evidence located on these types of devices. Google did not, for

example, provide the government with access to all of Wilson’s electronic

communications on his computer. Instead, the government viewed four

discrete photographs that were attached to Google’s Cybertip. Wilson’s

reliance on Riley and Carpenter is misplaced here.

Wilson further contends the agent here significantly expanded on

Google’s search. Wilson relies on the United States Supreme Court’s decision

in Walter, and contends Jacobsen is inapposite. We disagree. In Walter, a

private party mistakenly received a shipment containing several individual

boxes of films with labels on the outside indicating the films contained

obscene content. (Walter, supra, 447 U.S. at pp. 651-652 [explaining “one

side of [the examined boxes contained] suggestive drawings, and on the other

side were explicit descriptions of the contents”].) After one of the employees

unsuccessfully attempted to view the films’ contents, the private party

contacted the Federal Bureau of Investigation (FBI) to retrieve the shipment.

(Id. at p. 652.) The FBI agents viewed the films with a projector without

obtaining a warrant. (Ibid.) In a plurality opinion, the Court held that the

government’s search violated the Fourth Amendment, explaining that “[t]he

projection of the films was a significant expansion of the search that had been

conducted previously by a private party.” (Id. at pp. 657-658.)

24

Wilson contends Google’s use of its hashing technology “was not

materially different than reading the descriptive material on [the] film boxes”

in Walter. This case is distinguishable. In Walter, prior to the FBI’s

screening of the films, the agents “could only draw inferences about what was

on the films” based solely on the labels. (Walter, supra, 447 U.S. at p. 657.)

The private party attempted to, but could not, view what was inside. (Id. at

p. 652.) Here, the digital fingerprints associated with Wilson’s files convey

that the information in the four images is exactly the same as what was

previously viewed by a Google employee. The hash value therefore is not like

the labels or pictures on the boxes in Walter. The situation would be

different, and Walter would likely control, if Google and the government here

had relied on file names associated with the four images suggestive of child

pornography. But Google’s hashing technology employs a much more

sophisticated, multi-tiered process, matching files on its services only against

hash values for images that have already been identified as apparent child

pornography by its employees. Unlike the private party in Walter, Google

used a reliable and accurate method of identifying the actual contents of the

files that were provided to the government—all four files were duplicates of

images that a Google employee previously reviewed and identified as

apparent child pornography.

Wilson also attempts to distinguish Jacobsen by pointing out that

Google may have previously identified the subject images incorrectly: “a

hash match involves origination subjectivity and does not provide a ‘virtual

certainty’ that the suspect file is necessarily an image that has been

previously correctly identified as child pornography.” We are not persuaded

by Wilson’s attempt to distinguish Jacobsen on these grounds. There is no

evidence in the record that Google’s initial identification of apparent child

25

pornography, and the associated hash value calculation, was erroneous.

Even if some level of subjectivity is involved when a Google employee

identifies suspected child pornography, that does not mean the private search

doctrine does not apply. The Court in Jacobsen made clear that the DEA

agents could rely on the testimony of the FedEx employees, and that they

could also confirm the employees’ conclusions based on their private

observations—and thereby guard against any errors or “flaw[s] in the

employees’ recollection”—by viewing the contents of the container

themselves. (Jacobsen, supra, 466 U.S. at p. 119.) The private search

doctrine does not require perfection in the information conveyed by a private

party. Unlike Walter, the government relied on much more than a mere label

in this case. Like Jacobsen, where “the suspicious nature of the material

made it virtually certain that the substance tested was in fact contraband”

(id. at p. 125), the suspicious nature of the images was evident based on

Google’s hashing technology. Before opening the four images, the

government could not be one hundred percent certain the Google employee

who previously viewed the four images was not mistaken about what was

depicted in the pictures. But that possibility of error exists in all cases under

the private search doctrine—there is some chance that the private party is

conveying inaccurate information. In this case, however, it was reasonable

for the government to conclude that the images were contraband based on the

hashing process, the A1 designations associated with each of the four files,

and the agent’s own knowledge and training as a member of the ICAC task

force.14 (Cf. United States v. Runyan (5th Cir. 2001) 275 F.3d 449, 463

14 Wilson also argues that “the hash match cannot provide the same

virtual certainty as [the] chemical test” in Jacobsen, but that is not the

proper benchmark because the private party in Jacobsen did not perform the

chemical test. A more appropriate comparison would be to the FedEx

26

[concluding that “police exceed the scope of a prior private search when they

examine a closed container that was not opened by the private searchers

unless the police are already substantially certain of what is inside that

container based on the statements of the private searchers, their replication

of the private search, and their expertise”].)

Wilson also cites United States v. Keith (D.Mass. 2013) 980 F.Supp.2d

33, which dealt with a similar hash matching process and concluded that

NCMEC, acting as a government agent, expanded on a private search by

opening and viewing electronic files forwarded to it by a private internet

service provider. (Id. at pp. 41, 43.) The court concluded Jacobsen was

inapposite because, in that case, “the subsequent DEA search provided no

more information than had already been exposed by the initial FedEx

search.” (Id. at p. 43.) By contrast, the court reasoned that more information

can be obtained from viewing a file’s contents: “That is surely why a

CyberTipline analyst opens the file to view it, because the actual viewing of

the contents provides information additional to the information provided by

the hash match.” (Ibid.) But examining an item more closely and learning

some additional details is not incompatible with applying the private search

doctrine; the question is “the degree to which [the additional intrusions]

exceeded the scope of the private search.” (Jacobsen, supra, 466 U.S. at

p. 115.) Moreover, the fact that the agent learned more from his review of

the pictures compared to his review of the numerical algorithm is not

dispositive because the proper question is whether this additional knowledge

exceeded the scope of the private party’s search. As we have already

employees’ visual observations of the contents of the container and the white

substance. Google’s extensive hash matching process provides even more

information than those visual observations and inferences drawn from how

the white substance was packaged.

27

discussed, the private party in this case did know all of the same details

based on the prior visual review of the identical images by a Google employee

and the government’s search did not exceed the private search. (See Reddick,

supra, 900 F.3d at pp. 638-639 [a detective did not expand the scope of

Microsoft’s private search; applying Jacobsen, the court concluded that

“opening the file merely confirmed that the flagged file was indeed child

pornography, as suspected” after Microsoft scanned the defendant’s files and

determined the image file’s hash value was identical to the hash value of

known child pornography]; United States v. Miller (E.D. Ky. 2017) 2017 WL

2705963, at *7 [“Google’s hash-value matching . . . does not reveal anything

about an image that Google does not already know from the regular eyes of

its employees. Put another way, hashing is not a futuristic substitute for a

private search—it is merely a sophisticated way of confirming that Google

already conducted a private search.”].)15 In addition, in Keith and unlike

here, it was not clear who performed the initial private search. The court

noted it was “possible that the hash value of a suspect file was initially

generated by another provider and then shared with AOL.” (Keith, at p. 37,

15 Although the government could learn some details previously unknown

to it, there is no likelihood that the government would learn something else of

significance under the Fourth Amendment—i.e., a private fact in which a

reasonable expectation of privacy remains—when it viewed the four images

of child pornography following Google’s extensive, multi-step hashing process.

(Cf. United States v. Lichtenberger (6th Cir. 2015) 786 F.3d 478, 488-489

[“[N]ot only was there no virtual certainty that [the officer’s] review [of a

laptop computer] was limited to the photographs from [the private party’s]

earlier search, there was a very real possibility [the officer] exceeded the

scope of [the private] search and that he could have discovered something else

on [defendant’s] laptop that was private, legal, and unrelated to the

allegations prompting the search—precisely the sort of discovery the

Jacobsen Court sought to avoid in articulating its beyond-the-scope test.”],

italics added.)

28

fn. 2; see also id. at p. 43 [“the provenance of that designation [of the original

file as child pornography] is unknown”].) By contrast, “[n]o hash is added to

[Google’s] repository without the corresponding image first having been

visually confirmed by a Google employee to be apparent child pornography.”

Finally, Wilson contends he can establish a violation of his Fourth

Amendment rights based on a trespass theory, irrespective of whether his

privacy interests were invaded. The government violates the Fourth

Amendment by either infringing on a defendant’s constitutionally protected

expectation of privacy (Katz v. United States (1967) 389 U.S. 347, 351-353; id.

at p. 361 (Harlan, J., concurring)), or by physically intruding (trespassing) on

a defendant’s property to obtain information (United States v. Jones (2012)

565 U.S. 400, 404-411). But as previously discussed, it was a private party,

not the government, who searched and seized Wilson’s property. The

government merely viewed what the private party had turned over through a

private Cybertip. The Fourth Amendment only prohibits governmental

action. Wilson provides no sound basis for finding a Fourth Amendment

violation under these circumstances, even if Google’s search can be

characterized as an unlawful trespass, a physical intrusion on defendant’s

property interests, or any other type of wrongful conduct. (See Walter, supra,

447 U.S. at p. 656 [“a wrongful search or seizure conducted by a private party

does not violate the Fourth Amendment and . . . such private wrongdoing

does not deprive the government of the right to use evidence that it has

acquired lawfully”]; Jacobsen, supra, 466 U.S. at pp. 114, 119 [finding that

the DEA agent’s “viewing of what a private party had freely made available

for his inspection did not violate the Fourth Amendment,” even though the

private actor’s conduct “might have been impermissible for a government

agent”]; People v. Otto (1992) 2 Cal.4th 1088, 1112 [the exclusionary rule

29

“does not preclude the state from using the fruits of illegal searches and

seizures by private citizens”]; People v. Wilkinson (2008) 163 Cal.App.4th

1554, 1564 [“[t]he Fourth Amendment’s prohibition against unreasonable

searches and seizures does not apply to searches by private citizens, even if

the private citizens act unlawfully, unless the private citizen can be said to be

acting as an agent for the government”].)

II.

Sufficiency of the Evidence: Section 288(a)

Wilson contends the evidence does not support the jury’s verdict finding

him guilty of Counts Two, Three, and Four, for which he was charged with

aiding and abetting, or conspiring to commit, J.A.’s lewd and lascivious acts

on her daughter and cousin in violation of section 288, subdivision (a) because

J.A. did not harbor the requisite sexual intent. We disagree.

“Our task is clear. ‘On appeal we review the whole record in the light

most favorable to the judgment to determine whether it discloses substantial

evidence—that is, evidence that is reasonable, credible, and of solid value—

from which a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507.)

“In applying this test, we review the evidence in the light most

favorable to the prosecution and presume in support of the judgment the

existence of every fact the jury could reasonably have deduced from the

evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to

justifiable suspicion do not justify the reversal of a judgment, for it is the

exclusive province of the trial judge or jury to determine the credibility of a

witness and the truth or falsity of the facts upon which a determination

depends. [Citation.] We resolve neither credibility issues nor evidentiary

conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal

30

for insufficient evidence ‘is unwarranted unless it appears “that upon no

hypothesis whatever is there sufficient substantial evidence to support” ’ the

jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Both parties agree that for the jury to convict Wilson of committing

lewd and lascivious acts on a child under the age of 14 on the theory that he

aided or abetted, or conspired with, J.A. when she committed those acts, the

jury was required to find that J.A., as the principal perpetrator, touched the

children “with the intent of arousing, appealing to, or gratifying the lust,

passions, or sexual desires of [herself] or the child.” (§ 288, subd. (a).) This

element is the only element which Wilson contends was not supported by

sufficient evidence.

For purposes of this appeal, Wilson does not contend that J.A. did not

touch the children, but only that the evidence did not support the jury’s

conclusion that she did so with the requisite intent. Wilson argues J.A. did

not lust after her infant daughter and young cousin and touch them with the

aim of satisfying her own sexual desires, but rather that the evidence

established that she touched the children only because Wilson paid her to do

so and she was desperate for money.

“Regarding a specific intent element of a crime, [our Supreme Court

has] explained that ‘[e]vidence of a defendant’s state of mind is almost

inevitably circumstantial, but circumstantial evidence is as sufficient as

direct evidence to support a conviction.’ [Citation.] Moreover, the standard

of review that applies to insufficient evidence claims involving circumstantial

evidence is the same as the standard of review that applies to claims

involving direct evidence. ‘We “must accept logical inferences that the jury

might have drawn from the circumstantial evidence. [Citation.]” [Citation.]

“Although it is the jury’s duty to acquit a defendant if it finds the

31

circumstantial evidence susceptible of two reasonable interpretations, one of

which suggests guilt and the other innocence, it is the jury, not the appellate

court that must be convinced of the defendant’s guilt beyond a reasonable

doubt. [Citation.]” [Citation.] Where the circumstances reasonably justify

the trier of fact’s findings, a reviewing court’s conclusion the circumstances

might also reasonably be reconciled with a contrary finding does not warrant

the judgment’s reversal.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

To sustain a conviction under section 288, subdivision (a), the

prosecution must present evidence regarding the intent of the person

touching the minor. “As the vast majority of courts have long recognized, the

only way to determine whether a particular touching is permitted or

prohibited is by reference to the actor’s intent as inferred from all the

circumstances.” (People v. Martinez (1995) 11 Cal.4th 434, 450.) Convictions

under section 288, subdivision (a) “have been obtained and upheld only where

the defendant’s lustful intent was manifest under the particular

circumstances. In all cases arising under the statute, the People are required

to prove that the defendant touched the child in order to obtain immediate

sexual gratification.” (Martinez, at p. 452.) “Of course, the manner of

touching is not irrelevant under this view. ‘[T]he trier of fact looks to all the

circumstances, including the charged act, to determine whether it was

performed with the required specific intent.’ [Citations.] Other relevant

factors can include the defendant’s extrajudicial statements [citation], other

acts of lewd conduct admitted or charged in the case [citations], the

relationship of the parties [citation], and any coercion, bribery, or deceit used

to obtain the victim’s cooperation or avoid detection [citation].” (Id. at

p. 445.)

32

With these principles in mind, we conclude the evidence supports

Wilson’s conviction on the theory that J.A. harbored the requisite sexual

intent when she touched the girls. Viewed in the light most favorable to the

prosecution, the evidence shows that J.A. touched the girls, including orally

copulating her daughter, to satisfy her lust, passion, and sexual desire

directed toward young girls. As she admitted, there was no medical reason

for touching the girls. She also admitted she knew that what she was doing

was “wrong” and that she “sinned” when she touched the girls, reasonably

supporting the inference that she understood her feelings toward the girls

were lewd and lascivious. During the time period in which she was touching

the girls, she never objected to Wilson’s sexualized comments regarding

young girls and even participated in watching child pornography with

Wilson. J.A. did not reject Wilson’s proposals. And she did not merely accept

Wilson’s proposal to perform oral copulation on two young girls; she

responded by laughing and asking to “do [it] ASAP.” When Wilson showed

her photos of a young girl that he wanted her to sexually abuse, J.A. did not

react with disgust, but instead expressed she found the girl to be “soo small

and cute lol.” This evidence, viewed in the light most favorable to the jury’s

verdict, supports the conclusion that J.A. touched the girls to obtain her own

immediate sexual gratification.

Additionally, as the prosecution argued in opposition to Wilson’s

pretrial motion to set aside the information, the evidence established that

J.A. participated in “ ‘non-mainstream’ ” sexual activities, supporting an

inference that she would also participate in “ ‘non-mainstream’ ” child

molestation.

On appeal, Wilson points to J.A.’s own statements that she had no

sexual intent when she touched the girls. He also points to other evidence in

33

the record suggesting she had no sexual interest in young girls because the

incidents giving rise to the offenses here were isolated incidents tied to her

need for money and she never lewdly touched any other minors. However, it

is not this court’s role on appeal to reweigh the evidence, resolve conflicts in

the evidence, or make our own credibility determinations. (See, e.g., People v.

Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314

(Jones).) The jury rejected J.A.’s self-serving statements denying her sexual

interest in children despite the evidence to the contrary and we must accept

that determination. Considered as a whole, the evidence supports the jury’s

verdict.

III.

Wilson’s Due Process Right to Notice of the Nature of the Charges

Wilson contends his due process right to notice of the charges against

him was violated when J.A. changed her testimony after the preliminary

hearing regarding the timing and contents of the photos she sent to Wilson

and which formed the basis for the charges against him. He asserts that

J.A.’s changing testimony between the preliminary hearing and trial

deprived him of adequate notice of the charges against him.

A. Additional Background

At the preliminary hearing, J.A. testified that she believed the videos of

her touching her daughter’s buttocks and orally copulating her daughter were

filmed and sent to Wilson on July 17, 2014. J.A. additionally testified that

she could not remember when she took the photo of her cousin and sent it to

Wilson, but that it occurred before the incidents involving videos of her

daughter.

34

The information filed after the preliminary hearing alleged that all acts

underlying the offenses occurred “between January 1, 2014 and August 20,

2015.”

At trial, J.A. changed her testimony to now reflect her understanding

that the girl in the July 17, 2014 video was her cousin, not her daughter. She

admitted that she met with the prosecution immediately before trial and

realized that the girl in the July video was not wearing a diaper, meaning it

could not be her infant daughter. She further testified that the videos

depicting her daughter were filmed and sent to Wilson in December 2014.

Concerned with this change in testimony and the apparent lack of evidence to

support the change, Wilson moved for a mistrial. The trial court denied the

motion.

B. Analysis

In Jones, supra, 51 Cal.3d 294, another child molestation case, the

Supreme Court considered “the extent to which the defendant’s due process

rights are implicated by the inability of his young accuser to give specific

details regarding the time, place and circumstances of various alleged

assaults.” (Id. at p. 299.) As the court explained, “[t]he ‘preeminent’ due

process principle is that one accused of a crime must be ‘informed of the

nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process

of law requires that an accused be advised of the charges against him so that

he has a reasonable opportunity to prepare and present his defense and not

be taken by surprise by evidence offered at his trial.” (Id. at p. 317.)

When a case is initiated with the filing of an information, the defendant

is afforded “ ‘practical notice of the criminal acts against which he must

defend’ ” primarily by way of the preliminary hearing transcript. (Jones,

supra, 51 Cal.3d at p. 317.) A defendant’s right to notice does not encompass

35

“notice of the specific time or place of an offense, so long as it occurred within

the applicable limitation period.” (Ibid., italics added.) “ ‘[A]t a minimum, a

defendant must be prepared to defend against all offenses of the kind alleged

in the information as are shown by evidence at the preliminary hearing to

have occurred within the timeframe pleaded in the information.’ ” (Ibid.,

quoting People v. Gordon (1985) 165 Cal.App.3d 839, 870-871.)

Here, the information alleged that all offenses occurred between

January 1, 2014, and August 20, 2015. The information also specifically

alleged that Wilson, through J.A., committed the specific acts of (1) orally

copulating J.A.’s daughter and lewdly touching her vagina; (2) touching her

buttocks; and (3) touching the buttocks of J.A.’s cousin. Although J.A.

repeatedly stated she could not recall specific dates, the evidence at the

preliminary hearing and at trial was consistent with the dates in the

information and consistent with the acts described in the information and at

trial against the same victims.

Wilson compares this case to People v. Ochoa (2016) 2 Cal.App.5th

1227, in which the appellate court held that when the information alleged

defendant committed the offenses against one victim, the prosecution could

not seek his conviction at trial based on evidence that the offense was instead

committed against a different victim. (Id. at pp. 1231-1232.) Doing so, the

court reasoned, would violate the defendant’s due process right to notice of

the charges against him. (Id. at p. 1232.)

Here, unlike Ochoa, the allegations in the information and the

testimony at the preliminary hearing were consistent with the evidence at

trial regarding the identity of Wilson’s victims and the offenses committed

against them. At most, J.A.’s testimony differed on the specific dates on

which the offenses were committed, but those dates remained within the time

36

period alleged in the information. Variances between the preliminary

hearing testimony and trial testimony regarding the time at which specific

acts occurred are not material and do not deprive a defendant of adequate

notice. (People v. Calhoun (2019) 38 Cal.App.5th 275, 306-309.) Accordingly,

Wilson’s contentions to the contrary have no merit.16

IV.

False Evidence

Wilson argues that the prosecution knowingly adduced false testimony

at trial to support its framing of the case. He contends that the prosecution

argued to the jury that Wilson “groomed” the sisters by starting with

innocuous photo shoots and slowly progressing to asking them to perform

sexual acts. Wilson asserts this framing was only possible because of the

false testimony by J.A. and her sister regarding their first photo shoot

together.

As Wilson asserts, J.A. testified she never participated in a photo shoot

in lingerie with her sister, who in turn testified that she did participate in

such a photo shoot with J.A., but it occurred at least a year after the initial,

fully-clothed photo shoot with both sisters. In his motion for a new trial,

Wilson presented evidence that the sisters posed in lingerie the same day as

their initial photo shoot and soon thereafter posed several times in

increasingly risqué photo shoots.

16 Shortly before oral argument, Wilson submitted a notice of new

authority pursuant to rule 8.254 of the California Rules of Court. In his

notice, Wilson suggests that the recent decision in People v. Hughes (2020)

50 Cal.App.5th 257 supports his claim that his due process right to notice

was violated. However, Hughes did not directly address the defendant’s due

process right to notice, but rather involved the prosecution’s duties under

section 1054 et seq. to disclose information and materials related to an expert

witness’s testimony before trial. (Hughes, at pp. 278-279.) Accordingly, the

decision in Hughes does not change our opinion in this case.

37

The trial court denied the motion for new trial, finding that the

evidence suggested the sister merely could not remember details, that the

evidence to the contrary was available to Wilson before trial, and that any

error was harmless because such evidence was not material.

As the Attorney General acknowledges on appeal, “[a] criminal

judgment obtained through use of false evidence violates due process,

whether the prosecution solicits the false evidence or simply allows it to go

uncorrected when it appears.” (Campbell v. Superior Court (2008)

159 Cal.App.4th 635, 652.) The prosecution may not knowingly present false

evidence and must correct testimony “that it knows, or should know, is false

or misleading.” (People v. Morrison (2004) 34 Cal.4th 698, 716.)

Wilson, however, offers nothing more than speculation that the sisters

knowingly committed perjury or that the prosecution knew their testimony

was false. As both sisters frequently testified, they admittedly could not

remember the exact sequence of the numerous photo shoots that had taken

place years earlier and had actively tried to forget what they had done with

Wilson. The plain impression of their testimony suggests that given the

sheer multitude of photo shoots, the sisters could not remember some of the

specific events and their timing, not that they were intentionally offering

false testimony. Given this topic was not a central element of the offenses,

the record likewise does not establish the prosecution knowingly adduced this

testimony or failed to correct it despite its knowledge of its falsity.

Moreover, even assuming some error, Wilson does not establish he was

prejudiced. A conviction premised on false evidence is reversible only when

the defendant shows that if such evidence were not introduced, it is

reasonably probable that the jury would have reached a different result.

(See, e.g., In re Roberts (2003) 29 Cal.4th 726, 742.)

38

Wilson does not meet his burden. Given the overwhelming evidence at

trial regarding Wilson’s treatment of the sisters, any discrepancy in the

precise sequence of their earlier photo shoots was immaterial and it is not

reasonably probable that if the jury was aware of the true sequence of photo

shoots, it would have concluded that Wilson did not aid and abet the touching

of the young girls. On appeal, Wilson contends that J.A.’s false testimony

regarding the early photo shoots was part of her effort to rehabilitate her own

image and “lay blame on [Wilson] for the molests of her daughter and

[cousin].” However, even accepting this framing, J.A. failed to rehabilitate

her image regardless of her testimony regarding the early photo shoots. As

discussed ante, the jury did not believe J.A.’s testimony regarding her own

sexual desires for her daughter and cousin and suggestion that she was

merely Wilson’s unwitting pawn. In light of the jury’s disregard for other

portions of J.A.’s testimony aimed at evading responsibility, it is unlikely that

more information regarding her participation in the early risqué photo shoots

would have led to a different result as to Wilson. Accordingly, there is no

basis for reversal in this regard.

V.

Brady Error

In an argument related to his claim regarding false evidence, Wilson

contends the prosecution failed to disclose photos in its possession depicting

the early “sexually charged photo shoots” with both sisters, which could have

been used at trial to impeach their testimony that no such photo shoot

occurred. Wilson contends this failure to disclose the photos stored on hard

drives seized from him violated the prosecution’s duties under Brady, supra,

373 U.S. 83.

39

Wilson raised this claim at trial after the sisters completed their

testimony. He asked the court to order the prosecution to turn over any

photos in its possession depicting either of the sisters. The prosecutor

informed the court that he had offered to provide those photos to Wilson’s

counsel months before trial, but defense counsel declined. Wilson’s counsel

admitted that he declined the offer, but told the court that given the sister’s

unexpected testimony he thought the photos were now relevant. The court

accepted the prosecution’s consent to providing the photos as soon as possible.

However, at the end of the last day of testimony at trial, the prosecution

informed the court that it learned it would take at least a week to obtain the

photos given the complex standards for copying and producing such sensitive

files. Defense counsel suggested he needed to review the files before the trial

concluded to preserve Wilson’s rights to a fair trial, but the court denied the

request. The court noted that any deprivation in this regard was the fault of

defense counsel, who declined the prosecution’s offer to disclose the material

over a month before trial. Wilson later raised the same issue in his motion

for new trial, which the trial court likewise denied. The trial court explained

that this photographic evidence “was not exculpatory evidence, at best it

impeached [the sisters] on a minor point.” Finding the evidence had been

offered to Wilson before trial, the court ultimately concluded that Wilson was

not prejudiced because “[i]t is not reasonably probable that the result would

have been different had the evidence been disclosed.”

We agree with the trial court. Under Brady, the prosecution has the

obligation to disclose to the defense all material exculpatory evidence.

(Brady, supra, 373 U.S. at p. 87.) “There are three components of a true

Brady violation: The evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching; that evidence

40

must have been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263,

281-282; see also People v. Superior Court (Johnson) (2015) 61 Cal.4th 696,

710.) A defendant establishes prejudice by showing the evidence was

material, i.e., if the evidence had been disclosed, there is a reasonable

probability that the result of the trial would have been different. (People v.

Jenkins (2000) 22 Cal.4th 900, 954.)

On appeal, we review a claim of Brady error de novo “but give great

weight to any trial court findings of fact that are supported by substantial

evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)

Here, Wilson fails to establish that the evidence was suppressed by the

government. Before trial, the prosecution offered the photos to Wilson’s

counsel, but he declined to review them. Moreover, even assuming the

prosecution had some duty to produce the photos despite defense counsel’s

disinterest, Wilson fails to demonstrate the requisite prejudice because the

photos were not material. As discussed ante regarding the same evidence,

the minor issue regarding the sequence of the early photo shoots was not a

central element of the prosecution’s case, even if we focus, as Wilson requests,

on the “grooming theory” of Wilson’s liability. If Wilson obtained the photos

to use as impeachment evidence at trial, he would have merely shown that

the sisters had imperfect recollection of their past interactions with Wilson.

Regardless of the sequence of events not directly related to the charged

offenses, it is not reasonably probable that the jury would have reached a

different result if it heard impeachment evidence on this issue. Thus, we

conclude there was no Brady error requiring reversal.

Wilson alternatively argues that his counsel’s failure to obtain the

photos before trial constitutes ineffective assistance of counsel. Like the

41

standard for Brady error, an appellant asserting his counsel was ineffective

must show a deficient performance and that absent the alleged

ineffectiveness, there is a reasonable probability of a more favorable result.

(People v. Waidla (2000) 22 Cal.4th 690, 718.) For the same reasons

discussed ante, we conclude there was no such prejudice even assuming

counsel’s performance was deficient.

VI.

Instructional Error

Wilson raises four claims regarding jury instructions. He contends the

court erred in failing to give two additional instructions regarding unanimity

and conspiracy, a set of instructions was unduly prejudicial, and the court’s

response to a jury question misconstrued the law.

A. Unanimity Instruction

Wilson alleges the trial court had a duty to provide a unanimity

instruction to the jury. We disagree.

Wilson contends that J.A.’s testimony presented multiple instances

that could separately support the charged offenses because she testified she

touched the girls on multiple occasions. According to Wilson, in light of the

possibility that the jurors relied on separate instances to support their

verdict, the court erred in not instructing the jury that it must unanimously

agree on the same specific act as supporting its verdict as to each offense.

42

The Attorney General does not dispute that the jury’s verdict must be

unanimous, but contends no unanimity instruction was required here.17 A

criminal defendant has a constitutional right to a unanimous jury. (See, e.g.,

People v. Russo (2001) 25 Cal.4th 1124, 1132.) “To protect this right, ‘if one

criminal act is charged, but the evidence tends to show the commission of

more than one such act, “either the prosecution must elect the specific act

relied upon to prove the charge to the jury, or the court must instruct the jury

that it must unanimously agree that the defendant committed the same

specific criminal act.” [Citations.]’ (People v. Napoles (2002) 104 Cal.App.4th

108, 114.)” (People v. Brown (2017) 11 Cal.App.5th 332, 341 (Brown).)

As Wilson notes, the jury heard evidence tending to show the

commission of more than one act that could support some of the charged

offenses. This, however, does not necessarily mean a unanimity instruction

was required. As the Brown court explained, the presentation of evidence

showing the commission of more than one act supporting a charged offense

creates the requirement of either a unanimity instruction or the

“ ‘prosecution must elect the specific act relied upon to prove the charge to the

jury.’ ” (Brown, supra, 11 Cal.App.5th at p. 341.) “The prosecution can make

an election by ‘tying each specific count to specific criminal acts elicited from

the victims’ testimony’—typically in opening statement and/or closing

argument. [Citations.] Such an election removes the need for a unanimity

17 In his notice of new authority, Wilson also cites the Supreme Court’s

recent decision in Ramos v. Louisiana (2020) ___ U.S. ___ [140 S.Ct. 1390,

206 L.Ed.2d 583], which held that the Sixth Amendment’s unanimity

requirement applies to criminal trials in state courts. Given California’s

existing requirement of a unanimous verdict, the Supreme Court’s decision

has no direct effect on California and does not change our analysis. Nothing

in Ramos suggests that a unanimity instruction was required in this case

under the factual circumstances we discuss post.

43

instruction. [Citation.] [¶] Under these principles, there is an implicit

presumption that the jury will rely on the prosecution’s election and, indeed,

is bound by it.” (Ibid.)

Here, the prosecution made such an election in closing argument. The

prosecution expressly claimed that the first two counts were premised on

J.A.’s oral copulation of her daughter in December. Similarly, the

prosecution argued that Counts Three and Four were premised on the

specific acts of touching the two girls in the incidents where J.A. sent the

photographs and videos to Wilson. Although J.A. suggested she touched her

cousin on a different occasion, the prosecution expressly did not seek to

establish Wilson’s guilt on an incident in which there was no photograph or

video shown at trial. By making such an election, the prosecution negated

the need for a unanimity instruction. (Brown, supra, 11 Cal.App.5th at

p. 341.) Thus, Wilson’s claim to the contrary has no merit.

B. Conspiracy Instructions

Wilson asserts the trial court had a sua sponte duty to give a jury

instruction clarifying that Wilson was not responsible for J.A.’s acts before he

joined the alleged conspiracy. As Wilson notes, “[a] conspirator cannot be

held liable for a substantive offense committed pursuant to the conspiracy if

the offense was committed before he joined the conspiracy.” (People v. Marks

(1988) 45 Cal.3d 1335, 1345.) On this point, Wilson contends the court

should have instructed the jury with CALCRIM No. 419, which provides:

“(The/A) defendant is not responsible for any acts that were done before (he/

[or] she) joined the conspiracy. [¶] You may consider evidence of acts or

statements made before the defendant joined the conspiracy only to show the

nature and goals of the conspiracy. You may not consider any such evidence

44

to prove that the defendant is guilty of any crimes committed before (he/ [or]

she) joined the conspiracy.”

“A trial court’s duty to instruct, sua sponte, on particular defenses

arises ‘ “only if it appears that the defendant is relying on such a defense, or

if there is substantial evidence supportive of such a defense and the defense

is not inconsistent with the defendant’s theory of the case.” ’ ” (People v.

Maury (2003) 30 Cal.4th 342, 424.)

Wilson contends on appeal that his central defense falls under this

instruction and there was “substantial evidence the charged acts occurred

before [Wilson] joined any conspiracy or aided and abetted the charged

crimes.” This contention on appeal, however, is belied by the evidence at

trial.

As Wilson did not testify at trial and offered no affirmative evidence in

defense, his opening brief on appeal relies primarily on his counsel’s closing

argument to claim there was evidence he did not join the conspiracy until

after J.A. committed the acts. As the jury was instructed, however, the

arguments of counsel are not evidence.

At most, Wilson points to an e-mail introduced at trial in which he told

another woman that J.A. sent him a video with her daughter as a surprise

and “ ‘I didn’t even ask for it.’ ” This evidence, however, does not support his

contention on appeal that he joined the conspiracy with J.A. after she

performed her criminal act. Rather, it supports his central defense that there

was no conspiracy at any time.

Wilson’s chief defense at trial was that the prosecution failed to show

that he solicited the photos and videos such that there was no conspiracy or

aiding and abetting. Following his statement to the other woman in the

e-mail, he asserted J.A. sent him the photos and videos on her own initiative

45

and her evidence to the contrary was not unequivocally supported by the

record of their communications.

In accordance with this defense, the jury was properly instructed on the

elements of conspiracy, including, inter alia, the requirement that Wilson

agreed with J.A. to commit the offenses. In contrast to his defense that he

never joined the conspiracy, no evidence at trial suggested Wilson did join the

conspiracy, but only did so after J.A. had already committed any acts

underlying the charged offenses. Thus, an additional instruction was not

warranted in this regard.

Regardless, we conclude that even if the trial court had a sua sponte

duty to instruct the jury with CALCRIM No. 419, and even if that error

constituted misinstruction on the elements of an offense, the error was

harmless beyond a reasonable doubt. (Chapman v. California (1967)

386 U.S. 18, 24.) The conspiracy instructions that were given clearly

informed the jury that Wilson’s culpability required an agreement to commit

the offenses before J.A. committed the acts, which the evidence undisputedly

showed J.A. did commit. The evidence also established that Wilson

repeatedly made “proposals” to J.A. to pay her to perform the acts, record

them, and send him copies of the resulting photos and videos. In the absence

of any evidence to the contrary, there was no prejudicial error.

C. Instructions Regarding Evidence of Other Crimes

At trial, the prosecution presented evidence regarding uncharged

criminal offenses. The prosecution relied on this evidence of similar yet

uncharged crimes to prove Wilson’s propensity to commit the charged

offenses. (See, e.g., Evid. Code, § 1108; People v. Villatoro (2012) 54 Cal.4th

1152, 1159-1166.) The court instructed the jury that “The People presented

evidence that the defendant” committed these uncharged offenses, which if

46

proven by a preponderance of the evidence, could be considered “for the

limited purpose of deciding whether the defendant acted” with the requisite

intent for the charged offenses.

The court repeated the phrase, “The people presented evidence that the

defendant” committed criminal offenses, multiple times in succession. As

Wilson concedes on appeal, he did not object to these instructions. However,

asserting the issue is not forfeited, he contends that the repetition of the

phrasing that the prosecution “presented evidence that the defendant”

committed offenses improperly signaled to the jury that the court was giving

an opinion that the evidence established that Wilson did indeed commit the

referenced offenses.

We reject Wilson’s claim of alleged prejudice. Standard jury

instructions regarding the use of uncharged offenses to establish intent

include the introductory phrase that Wilson challenges here. (See, e.g.,

CALCRIM Nos. 375, 852A, 852B, 1191A, 2840.) An instruction simply

stating that the prosecution “presented evidence” that the defendant

committed a crime is not synonymous with stating the evidence is credible or

that the defendant did indeed commit the crime. The given jury instructions

properly informed the jury of its role in evaluating whether the evidence was

sufficient to establish Wilson’s guilt. The jury was properly instructed that it

had the duty to decide “what the facts are,” that Wilson is presumed to be

innocent, and that the prosecution must prove Wilson’s guilt beyond a

reasonable doubt. Considering the totality of the instructions, we conclude

that the instructions did not mislead the jury or otherwise suggest to the jury

that the court had determined Wilson was guilty. (See, e.g., People v.

Reliford (2003) 29 Cal.4th 1007, 1013 [“[W]e must view a challenged portion

‘in the context of the instructions as a whole and the trial record’ to

47

determine ‘ “whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way” that violates the

Constitution.’ ”].)

D. Response to Jury Question Regarding J.A.’s Sexual Intent

Wilson contends the court erred in answering a jury question regarding

the element of J.A.’s intent for the section 288, subdivision (a) offenses. The

jury was correctly instructed that the People had to prove that J.A.

“committed the act with the intent of arousing, appealing to, or gratifying the

lust, passions, or sexual desires of herself or the child.”

As discussed ante, J.A. testified that she touched the children only

because she needed money. After it began deliberations, the jury sent a

question to the court, asking whether the “lust” and “passion” referred to in

the jury instruction could be “financial, or other types of ‘lust, passion.’ ”

After consulting with the parties’ counsel, the court replied that “[t]he specific

intent required for Counts 2-4 cannot be solely financial. ‘Lust’ refers to

sexual arousal or sexual gratification of the perpetrator or child.” Wilson’s

counsel argued before the trial court that stating the intent cannot be “solely

financial” (italics added) may be confusing, but the court explained that the

intent of the first sentence was to “make[] it clear that there could be

multiple intents going on.”

On appeal, Wilson contends the court’s answer misconstrued the law

and altered the intent requirement for section 288. We disagree. “When

reviewing ambiguous instructions, we inquire whether the jury was

‘reasonably likely’ to have construed them in a manner that violates the

defendant’s rights.” (People v. Rogers (2006) 39 Cal.4th 826, 873.)

The court’s reply clearly indicated to the jury that it must find J.A.

acted with sexual intent. Simply stating that J.A. could have acted for

48

multiple reasons, both sexual and financial, did not alter the requisite finding

of sexual intent. Wilson provides no authority to suggest that a perpetrator

must commit a section 288, subdivision (a) offense with a singular, sexual

intent. Nothing in the evidence suggests that sexual intent and financial

intent are mutually exclusive, or that any financial intent affected J.A.’s

sexual intent. The jury was not reasonably likely to have construed the

court’s reply as negating its duty to make the required finding of sexual

intent. We reject Wilson’s claim of error.

VII.

Prosecutorial Misconduct

Wilson asserts his due process rights were infringed due to several

prosecutorial errors that rendered the trial inherently unfair. He contends

the prosecutor (1) falsely claimed in his opening statement that text

messages sent by Wilson to J.A. existed but those text messages were not

introduced into evidence at trial; (2) met with J.A. immediately before trial to

“script[]” her testimony to fit the documentary evidence; (3) used

inflammatory language by calling Wilson a “special type of child molester”

during his opening statement; and (4) improperly vouched for J.A.’s

credibility. He also contends the court erred in not correcting these errors,

regardless of whether Wilson’s counsel objected at the time.

As Wilson concedes on appeal, his counsel did not object to any of these

allegedly improper acts by the prosecution.18 Setting aside any issues of

forfeiture, we conclude there was no prejudicial error by the prosecutor and,

by extension, the trial court. Most importantly, even assuming each act

complained of by Wilson was wrongful, Wilson fails to establish that the

18 Wilson argues the issues were not forfeited, but also contends that to

the extent an objection was necessary, his counsel was ineffective for failing

to object.

49

alleged errors warrant reversal. Wilson must establish that “there is at least

a reasonable probability that a more lenient verdict would have been

returned in the absence of the errors.” (See, e.g., People v. Vance (2010)

188 Cal.App.4th 1182, 1207; see also People v. Rodriguez (2020) 9 Cal.5th

474, 487 [reviewing claims of improper prosecutorial vouching and noting

“that courts have often found that brief statements such as those before us

have limited prejudicial effect”]; People v. Armstrong (2019) 6 Cal.5th 735,

798 [holding prosecutorial misconduct was not prejudicial under standard

established by People v. Watson (1956) 46 Cal.2d 818, 836].)

Wilson fails to meet this standard. Even if we consider the claims of

misconduct cumulatively, they are not sufficient to have deprived Wilson of a

fair trial. The evidence of his guilt was so overwhelming that it is not

reasonably probable the jury would have reached a different verdict in the

absence of the alleged prosecutorial acts.

VIII.

Cruel and Unusual Punishment

Wilson asserts his indeterminate term of life imprisonment constitutes

cruel and unusual punishment in violation of both the California and United

States Constitution “under the facts and circumstances of this case and for

this offender.” (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)

“Whether a punishment is cruel and/or unusual is a question of law subject to

our independent review, but underlying disputed facts must be viewed in the

light most favorable to the judgment.” (People v. Palafox (2014)

231 Cal.App.4th 68, 82.)

Wilson does not dispute that the trial court’s imposed sentence was

mandatory under the relevant statutes given his conviction of oral copulation

under section 288.7, subdivision (b), and the jury’s true findings under

50

section 667.61, subdivision (b). (§ 667.61, subds. (b), (c)(7), (c)(8), (e)(4)

[establishing mandatory sentence of 15 years to life for any person convicted

of multiple enumerated sexual offenses against more than one victim].) He

also does not appear to challenge the sentencing scheme facially. Instead, he

focuses on the imposed sentence as applied to him.

Although the mandatory nature of his sentence does not end our

inquiry, we grant the Legislature great deference. “[T]he determination of

whether a legislatively prescribed punishment is constitutionally excessive is

not a duty which the courts eagerly assume or lightly discharge. Here, as in

other contexts, ‘ “mere doubt does not afford sufficient reason for a judicial

declaration of invalidity. Statutes must be upheld unless their

unconstitutionality clearly, positively and unmistakably appears.” ’ ” (In re

Lynch (1972) 8 Cal.3d 410, 414-415 (Lynch).) Findings of disproportionality

are exceedingly rare and occur only in extraordinary cases. (Lockyer v.

Andrade (2003) 538 U.S. 63, 73; People v. Em (2009) 171 Cal.App.4th 964,

972 (Em).)

The Eighth Amendment of the United States Constitution forbids only

sentences that are “grossly disproportionate” to the crime. (Ewing v.

California (2003) 538 U.S. 11, 20.) This proportionality principle is narrow

when applied in noncapital cases. (Ibid.) Somewhat distinctly, under the

California Constitution, a punishment is cruel or unusual “if, although not

cruel or unusual in its method, it is so disproportionate to the crime for which

it is inflicted that it shocks the conscience and offends fundamental notions of

human dignity.” (Lynch, supra, 8 Cal.3d at p. 424; see also People v. Dillon

(1983) 34 Cal.3d 441, 478 (Dillon).)

“Lynch describes three ‘techniques’ to determine whether a sentence is

so disproportionate to the crime as to constitute cruel or unusual

51

punishment. [Citation.] We first consider ‘the nature of the offense and/or

the offender, with particular regard to the degree of danger both present to

society.’ [Citation.] Next, we compare the sentence to ‘punishments

prescribed in the same jurisdiction for different offenses which, by the same

test, must be deemed more serious.’ [Citation.] Finally, we compare the

sentence ‘with the punishments prescribed for the same offense in other

jurisdictions having an identical or similar constitutional provision.’

[Citation.] The weight afforded to each prong may vary by case. [Citation.]

‘Disproportionality need not be established in all three areas.’ ” (People v.

Baker (2018) 20 Cal.App.5th 711, 723 (Baker).)

On appeal, Wilson does not present an argument regarding each of

these techniques, but rather focuses on what he characterizes as his minimal

culpability as a non-perpetrator. As Wilson argues, he “was not present

when [J.A.] committed the molest acts, did not force her to commit them, and

was not aware she was committing the acts when she did them.”

Wilson’s argument ignores that under California law, a direct aider and

abettor with the requisite mental state is equally guilty of committing the

intended crime as the direct perpetrator. (§ 31.) “ ‘[W]hen an accomplice

chooses to become a part of the criminal activity of another, [he] says in

essence, “your acts are my acts,” and forfeits [his] personal identity. We

euphemistically may impute the actions of the perpetrator to the accomplice

by “agency” doctrine; in reality, we demand that [he] who chooses to aid in a

crime forfeits [his] right to be treated as an individual.’ ” (People v.

Prettyman (1996) 14 Cal.4th 248, 259.)

In People v. Gonzales (2001) 87 Cal.App.4th 1, the court rejected the

defendants’ argument that because they were merely aiders and abettors,

their sentences equal to that imposed on a direct perpetrator were cruel and

52

unusual. (Id. at pp. 16-17.) Looking at the circumstances of the offense—a

murder in that case—and the defendants’ participation, the court concluded

that the imposed sentences were not cruel and/or unusual as applied to the

defendants even though they were not the shooter. (Ibid.; see also Em, supra,

171 Cal.App.4th at pp. 974-975 [considering proportionality of aider and

abettor’s sentences based on their “integral assistance” in commission of

offense].)

We apply the same analysis here. Wilson’s role as an aider and abettor

does not negate his significant participation in the offenses. Although he did

not directly molest the girls, Wilson was the central figure leading to their

sexual abuse. The evidence at trial established that he sent proposals to J.A.

to take advantage of her trusted role as a mother and caretaker to reach

young children that were beyond Wilson’s own reach. By taking advantage of

J.A.’s desperate financial need and leading her into increasingly sexually

explicit acts, Wilson enabled the molestation of these young, vulnerable

children. Although the jury found J.A. harbored her own sexual desires,

there is a strong likelihood that without Wilson’s instigation and offer of

payment, the abuse would have never occurred. Thus, rather than being an

unwitting minor assistant, Wilson was the central figure in the offenses.

We also reject Wilson’s suggestion that unlike other sexual offenses

against older children, the harm to the victims here was minimal because

there is no evidence the girls “were even aware the conduct occurred or

suffered any type of psychological or physical trauma.” California courts

have long recognized “a strong public policy to protect children of tender

years.” (People v. Olsen (1984) 36 Cal.3d 638, 646.) “Along a spectrum

ranging from murder, mayhem, and torture on one end to petty theft on the

other, ‘lewd conduct on a child may not be the most grave of all offenses, but

53

its seriousness is considerable.’ ” (Baker, supra, 20 Cal.App.5th at pp. 724-

725.) Rather than decreasing his culpability, the vulnerability of the girls

given their young age is an aggravating circumstance. (Id. at p. 725.)

Similarly, Wilson’s culpability is heightened by aiding J.A. to abuse her

trusted position as a mother and caregiver to assault the children by

invidiously abusing the trust the girls placed in her. (See, e.g., People v.

Gomez (2018) 30 Cal.App.5th 493, 501-502.)

Wilson also relies on his criminal-free history, college education, and

general good standing in society to suggest the punishment is

disproportionate when applied to him. “Although these factors are favorable

to him, they do not outweigh the other factors.” (Baker, supra,

20 Cal.App.5th at p. 725.) Rather than suggesting a need for leniency, his

education and self-proclaimed success in life suggest he was aware of the

severity of his actions and did not embark on his criminal path due to an

incomplete understanding of its severity and effect. A college education and

good job are not a “free pass” to commit heinous acts while avoiding the

harshest penalties that apply to those perceived to be of a lower standing.

Finally, Wilson contends that the prosecution’s plea deal with J.A.,

which resulted in her not serving any prison time despite her role as the

direct perpetrator, demonstrates how disproportionate his sentence is to his

culpability. To support this contention, Wilson relies on the Supreme Court’s

decision in Dillon, in which the court relied on the discrepancy between the

defendant’s life sentence and the sentences of his aiders and abettors, none of

whom were sentenced to any prison time. (Dillon, supra, 34 Cal.3d at p. 488.)

The court held that the excessiveness of the defendant’s sentence was

“underscored by the petty chastisements handed out to the six other youths

who participated with him in the same offenses.” (Ibid.) Thus, the difference

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between defendant’s heavy sentence compared to “the proverbial slap on the

wrist” received by the other defendants was a relevant factor in the court’s

holding that the defendant’s life sentence was cruel and unusual. (Ibid.)

Wilson, however, ignores that while the Dillon court compared the

defendant’s sentence to some of his aiders and abettors, it declined to

compare the defendant’s sentence to the one aider and abettor who was

granted immunity “for giving evidence against all the others.” (Dillon, supra,

34 Cal.3d at p. 488, fn. 40.) Plea agreements premised, in part, on an

offender’s cooperation with law enforcement are not unusual and an

admission of guilt and agreement to cooperate often has an effect on the

imposed sentence. (See, e.g., People v. Perez (2016) 243 Cal.App.4th 863,

879-880.) Here, J.A. entered an agreement with the prosecution premised on

her cooperation with law enforcement and agreement to testify against

Wilson. Wilson, obviously, did not cooperate and still denies his guilt.

Accordingly, comparing the sentences of Wilson and J.A. by ignoring the

effect of J.A.’s cooperation fails to provide an appropriate comparison in

regard to proportionality.

Beyond his challenge to his sentence as a non-perpetrator as compared

to the sentence for J.A. and reliance on his personal history, Wilson makes no

effort on appeal to challenge his sentence as being disproportionate as

compared to the sentences for other more serious crimes or sentences

imposed for similar sentences in other states. By failing to make a challenge

to his sentence under those techniques for applying the constitutional

analysis in his opening brief, we deem the issues forfeited. (See, e.g., People

v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) Considering the claims raised by

Wilson, we do not find this case to be one of the exceedingly rare cases

warranting a finding that the imposed sentence is disproportionate to

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defendant’s culpability. Accordingly, Wilson fails to show that his sentence

violates the Eighth Amendment or the California Constitution.

IX.

Cumulative Error

Wilson contends that even if the alleged errors standing alone did not

deny him a fair trial, the cumulative effect of these errors unfairly denied

him his due process rights. His claim of cumulative error must demonstrate

that absent the errors, there is a reasonable probability the jury would have

reached a more favorable result. (People v. Holt (1984) 37 Cal.3d 436, 458.)

Wilson has not met this burden. For the reasons stated ante, we conclude his

conviction was not the result of any prejudicial error. For the same reasons,

his claim of cumulative error has no merit.

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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