People v. Carothers, 2015 Cal. App. Unpub. LEXIS 5414 (Cal. Ct. App. July 31, 2015):

A jury found defendant James Carothers guilty of possessing child pornography. (Pen. Code, § 311.11, subd. (a).) The trial court granted a five-year term of probation and imposed probation conditions including one year in county jail and the requirement that defendant complete a sex offender management program as mandated by section 1203.067. The court also imposed probation conditions requiring defendant: (1) to waive any privilege against self-incrimination and participate in polygraph examinations as part of the sex offender management program under subdivision (b)(3) of section 1203.067 (subdivision (b)(3)); (2) to waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer under subdivision (b)(4) of section 1203.067 (subdivision (b)(4)); (3) not to date, socialize with, or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer; (4) not to purchase or possess any pornographic or sexually explicit material as defined [*2]  by the probation officer; (5) not to enter any social networking sites or post any advertisement, either electronic or written, unless approved by his probation officer; (6) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited; and (7) not to possess or use any data encryption technique program.

On appeal, defendant contends the trial court erred by admitting testimony from a prosecution witness recounting the contents of "chat room" discussions found on defendant's computer.***

I. Factual and Procedural Background

A. Facts of the Offense

Defendant shared a two-bedroom house in Campbell with his housemate, Anthony Englehart. They lived in separate bedrooms. In 2011, federal and local law enforcement agents executed a search warrant at the house as part of an investigation into an international child pornography network. Agents seized multiple computers, including computers belonging to both defendant and Englehart. Among other machines, agents found a desktop computer in defendant's bedroom and a laptop in the [*4]  living room. Defendant identified those two computers as his. He told agents he had exclusive use of his computers and nobody else was authorized to use them. Defendant provided a password to the desktop computer. Agents found several hundred photographic images of child pornography on defendant's computers. They also found a video of child pornography that had been downloaded 33 hours before the warrant search was conducted.

Agents also recovered numerous electronic communications between defendant and others discussing child pornography. Investigators subpoenaed defendant's emails from Comcast and discovered emails between defendant and Shawn McCormack, a producer of child pornography. Agents also found logs of chat room conversations stored on the desktop computer taken from defendant's bedroom. One of the chat room conversations had taken place about three weeks before the warrant search. A participant using the screen name "Witchovarozona" identified his real name as "Jim." ... Agents also found logs of another chat room conversation involving a participant identified as [*5]  "jameslboluvs." ....

Defendant took the stand in his defense. He testified that he had given the password to his Comcast account to Englehart, his housemate. He stated that Englehart had experienced constant problems with his own computer, so defendant allowed Englehart to use defendant's computer dozens of times. Defendant had also allowed Englehart to use the computer in his (defendant's) bedroom. Several months before the warrant search, defendant's hard drive died, so Englehart gave him a used hard drive as a replacement. Defendant installed it in his own computer.

Defendant testified that Englehart's Internet connection was not working on the night before the warrant search. Defendant let Englehart use defendant's computer in defendant's bedroom while defendant slept on the couch. When law enforcement knocked on the door, Englehart said, "Fuck, they're here for me." Defendant testified that he did not recall telling law enforcement agents about his computers or giving them the password.

Defendant [*6]  denied having any knowledge of the child pornography on his computer. He testified that he had never downloaded or viewed any child pornography. He denied that he sent the emails presented by the prosecution, and he denied engaging in conversations in chat rooms.

B. Procedural Background

The prosecution charged defendant with one count of possessing child pornography. (§ 311.11, subd. (a).) Defendant waived his right to a preliminary hearing and the case proceeded to trial in September 2013.

At trial, the prosecution sought to introduce the content of chat room conversations found on defendant's computer through the testimony of Special Agent Todd Schoenberger of the Department of Homeland Security. Without introducing transcripts of the conversations, the prosecution offered to have Agent Schoenberger testify as to what he saw in the digital logs stored on defendant's hard drive. Defendant objected on three grounds: (1) that the evidence had not been authenticated; (2) that the statements constituted hearsay; and (3) that admission of the testimony would violate the secondary evidence rule (Evid. Code, § 1521).

The trial court overruled defendant's objections and admitted the testimony as an admission of a party opponent. [*7]  The court also instructed the jury in accord with CALCRIM No. 375 (limiting instruction as to evidence of uncharged offense to prove identity, intent, common plan, etc.).

The jury found defendant guilty as charged. At sentencing, the court granted a five-year term of probation with one year in county jail as a condition of probation. As a further condition of probation, the court ordered defendant to complete a sex offender management program as mandated by section 1203.067, as well as the conditions of probation previously identified.

II. Discussion

A. Admission of Testimony Regarding the Chat Room Conversations

Defendant contends the trial court erred by admitting Agent Schoenberger's testimony recounting the contents of the chat room conversations found on defendant's computer. Defendant argues that the prosecution failed to establish their authenticity and that their admission violated the secondary evidence rule set forth in Evidence Code section 1521 et seq. The Attorney General contends the evidence was properly authenticated and that the trial court complied with Evidence Code section 1521. We conclude the trial court erred by admitting oral testimony recounting the chat logs, but we conclude the error was harmless.

1. Legal Principles

Evidence Code section 1401 provides, in part: "Authentication [*8]  of a writing is required before secondary evidence of its content may be received in evidence." (Evid. Code, § 1401, subd. (b).) "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) "The means of authenticating a writing are not limited to those specified in the Evidence Code. [Citations.] For example, a writing can be authenticated by circumstantial evidence and by its contents." (People v. Skiles (2011) 51 Cal.4th 1178, 1187 (Skiles).) On appeal, the trial court's receipt of the evidence over defendant's objection is reviewed for abuse of discretion. (People v. Daugherty (2011) 199 Cal.App.4th Supp. 1, 6.)

"The content of a writing may be proved by an otherwise admissible original." (Evid. Code, § 1520.) "'Original' means the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. [. . .] If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'" (Evid. Code, § 255.)

Evidence Code section 1521 provides, in part: "The content of a writing may be proved by otherwise admissible secondary evidence." (Evid. Code, § 1521, subd. (a).) "Once the proponent of the evidence [*9]  establishes its authenticity, [Evidence Code] section 1521 requires exclusion of secondary evidence only if the court determines: (1) '[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion' or (2) '[a]dmission of the secondary evidence would be unfair.'" (Skiles, supra, at p. 1188 [quoting Evid. Code, § 1521, subd. (a)(1) & (2).) However, Evidence Code section 1523 limits the circumstances in which oral testimony may be used to prove the content of a writing. It provides that, generally, "oral testimony is not admissible to prove the content of a writing." (Evid. Code, § 1523, subd. (a).) Evidence Code section 1523 sets forth three exceptions under which oral testimony may be admissible to prove the content of a writing. Two of the exceptions require that the proponent of the evidence not have possession or control of the original writing or any copy of it. (Id., subds. (b) & (c).) Under the third exception, the testimony is not inadmissible "if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole." (Id., subd. (d).) The trial court's determination of whether the proponent has satisfied these foundational requirements is reviewed for an abuse of discretion. [*10]  (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1069.)

2. The Trial Court Erred by Admitting Oral Testimony Recounting the Chat Logs

As an initial matter, we consider whether the underlying evidence constituted a "writing" for the purposes of authentication and the secondary evidence rule. "'Writing' means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored." (Evid. Code, § 250.) Here, the evidence in its "original" form consisted of chat logs stored on defendant's computer--that is, digital files on a hard drive. Such files are analogous to emails and constitute a "means of recording upon [a] tangible thing," as well as a record created of symbols. They are also analogous to computer data stored on magnetic tapes. (See, e.g., Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 798 [data entries on magnetic tapes constituted writings].) Furthermore, because the files constituted "data stored in a computer," "any printout or other output readable by sight" accurately [*11]  reflecting the contents of the files would constitute an "original" writing. (Evid. Code, § 255.) We conclude the chat log files in digital form constituted original writings under the Evidence Code, as would printouts or video displays of them, had the prosecution offered them as exhibits.

We next consider whether the evidence was properly authenticated under Evidence Code section 1401. "The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered." (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) Here, the prosecution offered the chat logs as admissions by a party opponent--i.e. statements by defendant--as evidence of his sexual predilections. Defendant objected on the ground that the prosecution had not proven he was one of the participants in the chat conversation.

The prosecution presented abundant evidence proving the chat logs were found on the hard drive of defendant's computer. Defendant admitted the computer was his, and he provided his password [*12]  to the agents who seized it. Furthermore, he told agents he had exclusive use of his computers and nobody else was authorized to use them. The participant in one of the chat conversations identified himself as "jameslboluvs," using defendant's first name and a set of characters extremely similar to defendant's email address ("james1bo@[provider]"). A participant in another conversation identified himself as "Jim" and revealed certain unusual details about his sexual proclivities. Agents discovered physical evidence in defendant's bedroom connecting him to these unusual proclivities. We thus conclude the prosecution presented sufficient circumstantial evidence to show defendant was a participant in the chat room conversations. The trial court did not abuse its discretion by finding the chat log to be authentic.

Finally, we consider whether the court properly admitted Agent Schoenberger's oral testimony recounting the logs. As noted above, while the trial court could have properly admitted a printout of the logs, Evidence Code section 1523 generally excludes oral testimony to prove the content of a writing. The statute sets forth three exceptions to this bar. The Attorney General does not identify any exception [*13]  under which the testimony could have been admitted. The prosecution made no claim that the state did not have possession or control of the original chat log files, so subsections (b) and (c) of the statute do not apply. Nor did the prosecution make any showing that the logs consisted of "numerous accounts or other writings that cannot be examined in court without great loss of time" under subsection (d). Accordingly, oral testimony was inadmissible to prove the content of the logs, and the trial court erred by admitting Agent Schoenberger's testimony recounting them.

However, given the overwhelming evidence of defendant's guilt, the error was harmless. Because the trial court erred as a matter of state law only, defendant must show a reasonable probability of a more favorable outcome in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818 (Watson).) Even if the trial court had excluded the testimony recounting the chat logs, the prosecution presented strong evidence to show defendant was in possession of child pornography. The most direct evidence consisted of hundreds of pornographic images and a pornographic video recovered from the hard drive of defendant's computer. Defendant admitted the computer was his, [*14]  and he provided his password to the agents who seized it. Furthermore, he told agents he had exclusive use of his computers and nobody else was authorized to use them. The prosecution also presented a large number of emails between defendant and a producer of child pornography. Although defendant in his testimony denied any connection to the evidence found on his computer, his testimony was not credible. It is not reasonably probable that a jury would have credited his testimony or otherwise would have ignored the substantial evidence of his guilt if Agent Schoenberger's testimony had been excluded. Accordingly, we conclude the erroneous admission of testimony recounting the chat logs was harmless under Watson, supra.