Opinion
H042177
10-20-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JEFFREY ZAMORA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1473661)
Defendant challenges his conviction for possession of child pornography based on the trial court's failure to instruct the jury on the defense of transitory possession. He also challenges a probation condition requiring him to undertake substance abuse treatment for marijuana use. For the reasons stated here, we conclude that there was no instructional error but that the trial court abused its discretion under People v. Lent (1975) 15 Cal.3d 481 ordering substance abuse treatment. With that condition stricken, we will affirm the judgment.
I. BACKGROUND
Defendant and his father shared a basement apartment in a home with other tenants living on the main floor. Detective Sean Pierce, a City of San Jose police officer assigned to the Child Exploitation Internet Crimes Against Children Task Force, was alerted to the presence of child pornography on a computer using an internet protocol (IP) address associated with defendant's residence. Using a law enforcement version of Ares, a peer-to-peer file sharing software program, Detective Pierce identified 34 suspect files on the computer, and he downloaded and viewed the content of two of those files. One showed a boy and a girl estimated to be between 10 and 12 years old engaged in sex acts and the other showed a man sexually exploiting a very young girl.
Four weeks later, officers executed a search warrant at defendant's residence, where they seized and examined his laptop computer. Several videos containing child pornography were found in a share folder on the computer's desktop. Defendant admitted to Detective Pierce that there was child pornography on the laptop, and that he had recently watched it. He admitted having masturbated to child pornography, and he was familiar with and had used certain child pornography search terms. Defendant divulged he had been watching child pornography for seven years (although not consistently), since researching socially unacceptable conduct in college. He felt some relief speaking with Detective Pierce because he wanted to "get it out," and he was "work[ing] toward[ ] ... going to see somebody" but he could not afford it.
At trial ten months later, defendant admitted that several explicit sexual videos of children were on his laptop. But he testified that he had not downloaded any child pornography, and he did not know child pornography was on his computer before discovering files in the Ares share folder a few weeks before the search warrant was executed. He stated he viewed the files not because of intentional desire, but to see what the files contained, and that he moved the files to the trash bin and cleared that bin after watching them. He did not know more files were on his computer, and he did not know how to completely get rid of them. He testified that he had lied to Detective Pierce because he had wanted to protect his father who had access to his computer.
Defendant was found guilty, imposition of sentence was suspended, and he was ordered to complete three years' formal probation with conditions that included 10 months in county jail. The court imposed mandatory sex offender probation conditions under Penal Code section 1203.067, ordered defendant to register as a sex offender under Penal Code section 290.85, placed restrictions on his computer use and his contact with children, prohibited him from possessing child pornography, prohibited him from possessing and using illegal drugs, ordered psychological and substance abuse treatment, and imposed mandatory fines and fees.
Defendant appealed. In addition to the issues we address below, defendant challenged certain probation conditions mandated by Penal Code section 1203.067, challenges he has since withdrawn in light of People v. Garcia (2017) 2 Cal.5th 792.
II. DISCUSSION
A. INSTRUCTION ON TRANSITORY POSSESSION
Defendant argues that the trial court erred by failing to instruct sua sponte on the defense of transitory possession because he had relied on that theory "for the purposes of disposing or destroying the contraband." He argues in the alternative that trial counsel rendered ineffective assistance by failing to request the instruction. A defense instruction must be given sua sponte " ' " '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. Martinez (2010) 47 Cal.4th 911, 953.) A transitory possession defense is available to persons accused of possessing child pornography. (In re Grant (2014) 58 Cal.4th 469, 479.) Penal Code section 311.11, subdivision (a) does not extend to one "who innocently receives unsolicited material, discovers it contains child pornography, and immediately destroys the material or reports it to law enforcement." (In re Grant, at p. 479.)
A transitory possession jury instruction was not warranted because unrefuted evidence shows files containing child pornography were found in an Ares share folder on the desktop, and those files had not been deleted. Officer Hardin, who testified as an expert in computer forensic analysis, used forensic software to locate the Ares file sharing program on defendant's computer, and he retrieved a log of the 50 most recent files that had been downloaded using that program. Some of those files had been viewed as recently as six days before the computer was seized. Although the names of those files were indicative of child pornography, Officer Hardin testified that a file name does not always reflect its content, and he did not view all 50 files to confirm their content.
Officer Hardin explained that a hard drive contains both allocated and unallocated memory, and he did not examine the unallocated portion of the hard drive, which is where deleted files are located. He confirmed that 22 files, most of which were in the share folder on the desktop, contained child pornography. Of those files, two video segments and still shots excised from 10 other videos were admitted into evidence. Because he only viewed 22 of the 50 files shown on the download log, Officer Hardin opined that the files left unviewed had been moved to the unallocated portion of the drive, which was not examined.
The trial court did not err by failing to instruct on a transitory possession defense, nor was counsel ineffective for failing to request the instruction. No evidence was presented to refute Officer Hardin's testimony that, while some files had been moved to the unallocated portion of the hard drive, other downloaded files containing child pornography remained in the share folder. A transitory possession defense was not relevant to those files, nor was it relied upon by defendant. To defeat the charge, defendant had to establish lack of knowledge of those videos. The jury was properly instructed on the knowledge element, and trial counsel argued that element had not been met.
B. SUBSTANCE ABUSE TREATMENT
When placing defendant on probation, the court stated that the probation department was adding a recommendation that defendant participate in a "substance abuse treatment program" at its direction "because there is a nexus, that the defendant had made admissions to the use of marijuana." The court acknowledged defendant's objection to the added condition (apparently made off the record), and imposed the condition (interlineated as condition 8a) as recommended. Defendant argues that the trial court abused its discretion by doing so because the condition fails the three-prong test set forth in People v. Lent (1975) 15 Cal.3d 481 (Lent).
A court granting probation may impose "any ... reasonable conditions, as it may determine are fitting and proper to the end that justice may be done ... and generally and specifically for the reformation and rehabilitation of the probationer[.]" (Pen. Code, § 1203.1, subd. (j).) Under Lent, "[a] condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.' " (Lent, supra, 15 Cal.3d at p. 486.) "Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid.) The parties disagree about whether the condition satisfies the second and third prongs of the Lent test.
We conclude on this record that the trial court abused its discretion in imposing substance abuse treatment for marijuana. Defendant reported to the probation department that he had been smoking marijuana "on a monthly basis" since he was 26 (he was interviewed a month after turning 28). He was an infrequent drinker, and had not consumed alcohol or marijuana in several weeks. He did not use other controlled substances, and there was no indication from the probation report or the transcript of proceedings that he had a substance abuse problem. Defendant had graduated from high school, attended some college, and maintained employment for six years. The record is devoid of any evidence that defendant was abusing marijuana, or any other substance.
To the extent the treatment condition implicates defendant's non-abusive use of marijuana, it is neither reasonably related to criminal conduct or future criminality under the second and third prongs of Lent. In 2010 the Legislature reduced possession of up to 28.5 grams of marijuana from a misdemeanor to an infraction, and eliminated the provision requiring treatment and rehabilitation for persons who habitually committed the offense. (Stats. 2010, ch. 708, § 1, p. 3994.) Thus, defendant's pre-legalization use of marijuana in 2013 and 2014, amounted to a criminal infraction.
Over 40 years ago the California Supreme Court recognized that no stigma attaches to conduct punishable as an infraction (In re Dennis B. (1976) 18 Cal.3d 687, 695), and society does not view the millions of Californians who commit infractions as criminals. (See Id.) Nor has the Legislature, which seeks to rehabilitate and reform the misdemeanant and felon through probation (Pen. Code, § 1203.1), viewed persons who commit infractions as being in need of such rehabilitation or reformation. Indeed, infractors are not subject to probation and redeem themselves by paying a fine. Thus, defendant's marijuana use cannot be regarded as criminal conduct, and nothing in the record establishes a connection between treatment for his occasional use of marijuana and future criminality.
Respondent argues that marijuana use is criminal conduct, citing People v. Bianco (2001) 93 Cal.App.4th 748, People v. Tilehkooh (2003) 113 Cal.App.4th 1433, People v. Brooks (2010) 182 Cal.App.4th 1348, and People v. Leal (2012) 210 Cal.App.4th 829, 838. But those cases are distinguishable because they were decided before (or relied on cases decided before) the 2010 amendment designating possession of less than 28.5 grams of marijuana an infraction, and none addressed substance abuse treatment for occasional marijuana use as a condition of probation. In addition, the trial court proscribed illegal drug use/possession in condition 8, independent of treatment imposed in condition 8a.
III. DISPOSITION
The probation order is modified to strike the condition that defendant participate in a substance abuse treatment program at the direction of probation. With that modification, the judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Elia, J.