Filed 3/15/16 P. v. Hultman CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069311

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FVI1301890)

PAUL JAMES HULTMAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County, Eric

M. Nakta, Judge. Affirmed.



         Richard de la Sota, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Scott C.

Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
       Paul James Hultman was convicted of one count of continuous sexual abuse of a

child under the age of 14 years (count 1), two counts of committing a lewd act upon a

child under the age of 14 years (counts 3 and 5), and one count of committing lewd or

lascivious acts upon a child age 14 or 15 years (count 6). (Pen. Code,1 §§ 288.5 subds.

(a), (c)(1).) The jury returned a true finding on special allegations that Hultman was

convicted of committing sexual offenses against more than one victim in the instant

offense. (§ 667.61, subds. (b), (e)(4).) The trial court sentenced Hultman to three years

on count 6, plus three consecutive terms of 15 years to life on counts 1, 3 and 5.

       Hultman contends that the trial court erred by admitting evidence of child sexual

abuse accommodation syndrome (CSAAS) and by allowing an unqualified witness to

testify as an expert on CSAAS. He further contends that the trial court abused its

discretion by admitting evidence of pornographic materials that were found on computer

equipment in his home because the prosecutor did not provide discovery of the

pornographic materials within the statutory time, and a continuance would have

significantly delayed the trial. Hultman also argues that because other persons had access

to the computers in his home, the admission of the pornographic materials was more

prejudicial than probative. We find no error and affirm.




1      Unless otherwise indicated, statutory references are to the Penal Code.
                                             2
                   FACTUAL AND PROCEDURAL BACKGROUND

       In June 2013, the People filed an eight count felony complaint alleging that on or

about June 2011 through February 2013, Hultman unlawfully engaged in the continuous

sexual abuse of Shyann G. (count 1), who was under the age of 14 years. (§ 288.5,

subd. (a).) The complaint further alleged that Hultman committed lewd and lascivious

acts upon four other children: Dylan G. (count 2), Kylie S. (counts 3 and 4), Chelsea S.

(counts 5 and 6), and Taylor D. (counts 7 and 8).2 (§§ 288, subds. (a), (c)(1).) As a

special circumstance, the People alleged that Hultman had been convicted in the instant

case of committing a lewd and lascivious act upon a child under the age of 14 years as to

more than one child (counts 1, 2, 3, 5 and 7). (§ 667.61, subds. (b), (e).)

       The prosecution alleged that Hultman had befriended the victims by paying them

to clean his home and do yard work, giving them access to his home, and by buying them

candy, clothes and other items. He then demanded, and received, oral sex from Shyann,

Kylie and Chelsea (collectively, the children), and paid them not to tell anyone. The

computer equipment in Hultman's home contained anime3 depicting young teenage girls

engaging in sex acts, and also contained pornographic images of young women who

looked as if they could be underage. The children did not immediately disclose the



2        The jury acquitted Hultman on the counts involving Dylan and Taylor (counts 2, 7
and 8). For brevity, we omit their testimony from the factual background, except where
it is relevant to the other counts.

3       Anime is "a style of animation originating in Japan that is characterized by stark
colorful graphics depicting vibrant characters in action-filled plots, often with fantastic or
futuristic themes." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 49, col. 2.)
                                              3
abuse, which had been ongoing for more than a year. The prosecution intended to

introduce expert testimony to show that it was not uncommon for child sexual abuse

victims to delay disclosure or recant their initial disclosures. This pattern was known as

CSAAS.

       Prior to trial, Hultman filed a motion in limine to exclude testimony about CSAAS

or, if the testimony was going to be admitted, to limit its scope. Hultman argued that

delayed disclosure is consistent with both having been sexually abused and not having

been sexually abused and, therefore, evidence about CSAAS would have little, if any,

probative value. Hultman further contended that the likelihood of prejudice from

admission of CSAAS testimony was significant because it was effectively a means to

vouch for the credibility of the victim. The prosecutor responded that he wanted to use

CSAAS to explain why the children delayed disclosing the sexual abuse for more than a

year. Further, if any victim recanted his or her initial statements to the police during the

trial, the expert would discuss CSAAS as it related to recantation. The court stated, "I

think if [the prosecution] wants to do it, I got to let him do it. I don't know the way or

reason why I would not allow him to do that."

       Defense counsel argued that an expert witness on CSAAS should be a doctor or

psychologist, not a detective. The prosecutor responded that he would not ask his expert

witness, Detective Jason Frey, whether a victim was suffering from CSAAS. Instead, the

expert would testify that recantation is not unusual in victims of child sexual abuse.

Based on the evidence, the jury would decide whether CSAAS applied. The court said,

"We're all on the same page, then." Defense counsel replied, "Right."

                                              4
       Hultman also sought to exclude pornographic material that was found on three

computers and a separate hard drive in his residence. The San Bernardino County

Sheriff's Department (Sheriff) seized the computer equipment in June 2013, at the time of

Hultman's arrest. The Sheriff issued its report on January 30, 2014. On March 14, 2014,

10 days before the scheduled trial date, the prosecutor informed defense counsel about

the existence of the material, which included 93,956 pages of new discovery. The People

listed 10 pornographic photographs and 28 images of anime child pornography as trial

exhibits, and provided defense counsel with copies of the proposed exhibits as well as a

media disc containing the Sheriff's complete report. The parties agreed to postpone the

trial from March 24 to April 1.

       On April 1, at the hearing on the motion in limine, Hultman asked the court to

exclude the evidence recovered from his computers. Defense counsel said that he had

received the disc on March 21 and had not had time to have a forensic expert examine the

material on the disc. The trial court offered to continue the trial but warned that if the

case were continued, it would be returned to the assignment calendar and the court would

withdraw all of its rulings to allow the case to be heard by any judge in the county. The

trial court added that all of the courts had heavy caseloads, and that the court was not

certain how soon a trial could be scheduled. After consulting with Hultman, defense

counsel advised the court that his client did not want a continuance but instead wanted to

proceed to trial.

       With respect to the pornographic anime, the trial court allowed in evidence 26

exhibits from the hard drive, and two from a tower computer, saying "anime is anime is

                                              5
anime." The trial court commented that the introduction of the photographs of actual

pornography was more problematic because the prosecution's expert could not testify that

the persons depicted in the photos were minors. The court asked the prosecutor to

provide a good reason why the jury should have to view the pornographic material.

       The prosecutor argued that the material was relevant to show the defendant's

interest in girls who appeared to be of the same age and appearance as the victims in this

case. Most of the cartoon images appeared to be of girls between the ages of nine to 15

years old engaging in sex acts. In addition, there were photographs of real people

engaged in sex acts. Many of the females in those photos appeared to be under 18 years

of age. Thus, the prosecutor maintained, the material was relevant to show Hultman's

sexual interest in children. The trial court found that the probative value of the material

outweighed its prejudicial effect, and allowed the prosecution to enter in evidence 10

pornographic photographs and 28 anime images.

       At trial, the jury heard evidence that Eric G. and his wife4 moved into the

defendant's neighborhood in January 2009. Eric's daughter, Shyann, and son, Dylan, had

friends who lived on the same street as Hultman. Hultman befriended Shyann and Dylan.

He repaired their bicycles and paid them for doing yard work. He bought toys and food

for them, and took them to the pool and the store.

       Eric was uncomfortable about Hultman's relationship with his children, and

became more concerned after Hultman gave Shyann a cell phone. In approximately



4      Eric's wife, who was Shyann and Dylan's stepmother, died in November 2012.
                                              6
February 2013, Eric told Hultman to stay away from his children. He instructed his

children not to go to Hultman's house. Eric testified that Shyann was acting "funny."

She was withdrawn and secretive. In June, his son Dylan told him that he and Shyann

were still seeing Hultman and that Hultman had given Shyann another cell phone and told

her to hide it. Hultman was meeting them in a park. Dylan also told Eric that he and

Shyann had watched pornography with Hultman. In June, Shyann told Eric's girlfriend,

Michelle, that Hultman had said, "let me show you how to suck my dick," and that he

would whisper "oh, beautiful[,] good girl" as she engaged in the act. Eric and Michelle

went to Hultman's home to confront him. When Hultman fled, they contacted the police.

       At the time of the trial, Shyann was 13 years old. Shyann testified that she did not

remember what happened the first time she performed oral sex on Hultman. After

reviewing her initial statement to the police, Shyann said that Hultman asked her to go to

his room. He pushed her by her shoulder and said that he had been doing kind things for

her and buying her things, and that she had to do something nice for him. He undid the

button on his pajama pants. His penis was hard. Shyann said that Kylie and Chelsea had

told her that he had made them suck his penis. Shyann performed oral sex on Hultman

for about 30 minutes. He gave her $20. Shyann estimated that during the next year and a

half, she performed oral sex on Hultman 10 times or fewer. He gave her $20 each time.

       Shyann testified that on one occasion, she and Kylie were in Hultman's kitchen

when they heard a funny noise coming from the guest bedroom. They peeked through a

crack in the doorway and saw Chelsea and Hultman having sex on the bed. Hultman

stopped when he realized that Shyann and Kylie were present. He told them not to say

                                            7
anything and gave them each some money. On another occasion, Shyann walked in on

Hultman while he was performing oral sex on Kylie and Chelsea.

       Hultman gave Shyann an iPhone 4S, but Hultman took it back to the store. He

gave her another cell phone shortly before the summer of 2013. Hultman occasionally

showed her pornography. Shyann said that the women "kind of looked like [] teenager[s]

but kind of looked like [] adult[s]," while the men appeared to be in their 20's and 30's.

       Dylan testified that he usually stayed in the living room watching television or

using the computer, or was outside watering the roses when Hultman and Shyann were

alone in another room. Hultman would take Shyann into a bedroom almost every time

they went to his house. Hultman gave Dylan toys and candy and paid him $5 or $10 to

water the roses.

       At trial, Kylie initially denied having had any sexual contact with Hultman. Kylie

acknowledged that her sister, Chelsea, had told her that she had performed oral sex on

Hultman and that he had paid her $20. During her testimony, Kylie became visibly upset

and started to cry. After a recess, Kylie testified that she had told Shyann that Hultman

had made her suck his penis. Kylie said that she performed oral sex on Hultman once.

She was 13 years old at the time. On another occasion, Hultman tried to take her pants

off. She told him no, but he took them off anyway and performed oral sex on her for 20

minutes. He paid her $20. Hultman tried to convince her to have sex with him. He said

to her, "The other girls get fucked, so why don't you get fucked, too."

       Kylie testified that she and Shyann were in the kitchen when they heard noises

coming from the back bedroom. The bedroom door was partially open. Kylie and

                                              8
Shyann saw Hultman and Chelsea having sex. Chelsea later told Kylie, "Don't tell mom

what happened."

       Chelsea testified that she met Hultman when she was walking her dogs. He was a

cool person. Hultman paid her $10 to $20 to clean his house. She went to his home on

Mondays, Tuesdays and Thursdays. Chelsea denied having had any sexual contact with

Hultman. Chelsea said, "[Michelle] put us up to all of this, just to let you know."

Chelsea maintained that Hultman had done nothing wrong.

       The prosecution played Chelsea's initial interview with a police detective, in which

she had stated that she had performed oral sex on Hultman approximately three times.

Chelsea also said that she had had sex with Hultman and that he had not forced her to

have sex with him. On one occasion, they were having sex when Shyann and Kylie

walked into the room.

       Detective Frey testified that he was assigned to the Crimes Against Children

Detail with the Sheriff. Frey was completing his master's degree in counseling. He

expected to graduate in May 2014. He had training and experience in child abuse cases

and was familiar with CSAAS. It was presented as part of the forensic children interview

training that he had received, and as part of his advanced officer training at the Rady

Chadwick Center in 2012 and in 2013. Frey had attended conferences in which

academics had discussed CSAAS, and was familiar with scholarly works about CSAAS.

He had not applied CSAAS on a clinical level. His training was academic. Prior to this

case, Frey had never testified about CSAAS.



                                             9
       Defense counsel objected to Frey testifying as an expert on CSAAS on the ground

that he was not qualified to provide expert testimony on the subject. The trial court

overruled the objection.

       Frey testified that CSAAS is a combination of patterns that have been observed in

sexually abused children. One pattern is a delayed, contradictory and unconvincing

disclosure of sexual abuse. Another pattern is a complete retraction of the initial

disclosure. There are five characteristics of CSAAS: secrecy, helplessness, delayed

disclosure, entrapment and accommodation, and retraction. Frey acknowledged that

CSAAS is not a diagnostic tool and does not help a professional to determine whether

someone has in fact been molested.

       Sheriff's detectives testified about seizing and examining the computer equipment

found in Hultman's house. They acknowledged that they did not find anything related to

child pornography. They found photographs of the victims on the same hard drive that

contained pornographic anime. None of the photographs of the victims was provocative

or abnormal.

       The defense called Veronica Thomas, Ph.D., as its CSAAS expert. She testified

that as a therapeutic approach, CSAAS can apply to some people who have been

molested by someone they know. CSAAS has no relevance to a criminal investigation or

to determine whether sexual molestation did or did not happen. Dr. Thomas explained

that a person who has been sexually assaulted by a stranger is more likely to discuss the

abuse than someone who has been sexually assaulted by a family member or friend.



                                             10
       Hultman testified that he met Shyann and Dylan after Thanksgiving in 2009 when

they were going door to door begging for food. They showed up at his home the next day

with a broken bicycle, which he fixed. Hultman said that the children looked like

refugees. Their clothing was filthy. According to Hultman, Dylan and Shyann "adopted"

him. He began buying clothing for them. Hultman said that the children's parents did not

provide for them and that they lived in squalor and were neglected. Hultman considered

calling child protective services. Instead, he spoke to Eric and Michelle about the

conditions in the home. Michelle disliked him. According to Hultman, Eric and

Michelle had substance abuse problems.

       Hultman said that he liked having the children at his house. They were fun and

silly and pulled him out of his depression. He maintained that he had not sexually abused

anyone. He denied watching pornographic anime or viewing pornography. Hultman

acknowledged that he had photographed the children at a park on June 8, 2013, and that

he had uploaded those photographs from his camera to one of his computers.

       The jury returned guilty verdicts on four of the eight counts, and returned a true

finding on the special circumstances alleged in counts 1, 3 and 5. The trial court

sentenced Hultman to three years on count 6, plus three consecutive terms of 15 years to

life on counts 1, 3 and 5.

                                       DISCUSSION

A.     Admissibility of CSAAS

       Relying on the trial court's statement that it had no choice but to admit CSAAS

evidence, Hultman contends that the trial court failed to exercise its discretion to

                                             11
determine the admissibility of testimony regarding CSAAS. Hultman further contends

that the trial court abused its discretion by allowing Detective Frey to testify as an expert

on CSAAS.

       1.     The record shows that the trial court exercised its discretion in allowing
limited testimony about CSAAS.

       Expert testimony on CSAAS is not admissible to prove that the sexual offense

charged actually occurred. CSAAS testimony is admissible to target a specific "myth" or

"misconception" suggested by the evidence. (People v. Bowker (1988) 203 Cal.App.3d

385, 393-394 (Bowker).) "For instance, where a child delays a significant period of time

before reporting an incident or pattern of abuse, an expert could testify that such delayed

reporting is not inconsistent with the secretive environment often created by an abuser

who occupies a position of trust. Where an alleged victim recants his story in whole or in

part, a psychologist could testify on the basis of past research that such behavior is not an

uncommon response for an abused child who is seeking to remove himself or herself

from the pressure created by police investigations and subsequent court proceedings."

(Ibid., citing People v. Bledsoe (1984) 36 Cal.3d 236, 247-248.) CSAAS evidence is also

admissible to rehabilitate the alleged victim's credibility when the defendant suggests that

the child's conduct after the incident, such as a delay in disclosing sexual abuse, is

inconsistent with the child's claim of having been sexually abused. (People v. Perez

(2010) 182 Cal.App.4th 231, 245.)

       "Beyond the tailoring of the evidence itself, the jury must be instructed simply and

directly that the expert's testimony is not intended and should not be used to determine


                                             12
whether the victim's molestation claim is true. . . . The evidence is admissible solely for

the purpose of showing that the victim's reactions as demonstrated by the evidence are

not inconsistent with having been molested." (Bowker, supra, 203 Cal.App.3d at p. 394.)

       We are not persuaded by Hultman's argument that the trial court's statements at the

in limine hearing demonstrate that the court did not know that it had the discretion to

exclude the CSAAS evidence and therefore abused its discretion when it denied his

motion in limine to exclude such evidence. Contrary to Hultman's contention, the court's

statement, "I think if [the prosecution] wants to do it, I got to let him do it. I don't know

the way or reason why I would not allow him to do that," (italics added) shows that the

court was aware that it was within the court's discretion to either allow or disallow the

prosecutor to present the CSAAS evidence. Further, the court's remark that the

prosecutor was entitled to introduce CSAAS evidence was made in the context of the

prosecutor's explanation that he intended to introduce that evidence for a limited

purpose―to explain why the children did not disclose the ongoing sexual abuse for more

than a year and why a child may recant his or her initial statements alleging sexual abuse.

The prosecutor explained that he would not ask the expert to render an opinion as to

whether the child was suffering from CSAAS. Instead, the expert would testify that

recantation is not unusual in victims of child sexual abuse. The trial court confirmed that

the prosecutor's proposed limitations on the CSAAS testimony were acceptable.

       The record shows that the trial court appropriately exercised its discretion in

admitting limited CSAAS evidence. The court considered the facts of the case and acted

within the legal principles governing the admissibility of CSAAS evidence. (See People

                                              13
v. Diaz (2014) 227 Cal.App.4th 362, 377.) The CSAAS evidence was admitted solely for

the purpose of showing that the victims' reactions were not inconsistent with having been

sexually abused. (Bowker, supra, 203 Cal.App.3d at pp. 393-394.) The evidence was not

admitted to prove that the children in fact had been sexually abused. Detective Frey and

Dr. Thomas each testified that CSAAS should not be used to determine whether the

victims' molestation claims are true. That determination was properly left to the jury.

     2.       Detective Frey was qualified to provide limited expert testimony about
CSAAS

       A person is qualified to testify as an expert if the person has "special knowledge,

skill, experience, training, or education sufficient to qualify him as an expert on the

subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) "The foundation

required to establish the expert's qualifications is a showing that the expert has the

requisite knowledge of, or was familiar with, or was involved in, a sufficient number of

transactions involving the subject matter of the opinion. [Citations.] 'Whether a person

qualifies as an expert in a particular case . . . depends upon the facts of the case and the

witness's qualifications.' " (Howard Entertainment, Inc. v. Kudrow (2012) 208

Cal.App.4th 1102, 1115.)

       The determination that a witness qualifies as an expert and the decision to admit

expert testimony are within the discretion of the trial court and will not be disturbed

without a showing of manifest abuse. (People v. Mendoza (2000) 24 Cal.4th 130, 177.)

On review, error in determining a witness's qualifications as an expert will be found only




                                              14
if the evidence shows that the witness clearly lacks qualification as an expert. (People v.

Hill (2011) 191 Cal.App.4th 1104, 1118.)

       We reject the people's argument that any error in permitting Detective Frey to

testify about CSAAS is harmless in view of Dr. Thomas's more extensive testimony on

the subject. It is clear that the defense would not have called Dr. Thomas if the

prosecution had not raised CSAAS as an issue. Nevertheless, on this record, we cannot

conclude that the trial court abused its discretion in permitting Detective Frey to testify as

a CSAAS expert.

       Detective Frey did not clearly lack qualifications to testify about CSAAS. (See

People v. Hill, supra, 191 Cal.App.4th at p. 1118.) Frey was assigned to the Crimes

Against Children Detail with the Sheriff. The record permits the reasonable inference

that in investigating allegations of child sexual abuse, Frey's duties included interviewing

children who allegedly had been sexually abused. His forensic child interview training

included instruction on CSAAS, which describes a variety of common reactions by

children to sexual abuse by a family member or friend. In addition, Frey had attended

academic conferences in which CSAAS was discussed, and was familiar with scholarly

works about CSAAS. Frey did not offer any clinical observations about the victims.

Rather, his testimony was limited to explaining the basic elements of CSAAS and

dispelling any misconception on the part of the jury that a child's delayed disclosure or

recantation means that the child was not sexually abused. (Bowker, supra, 203

Cal.App.3d at pp. 393-394.) We conclude that the trial court did not abuse its discretion

when it ruled that Frey had "special knowledge, skill, experience, training or education

                                             15
sufficient to qualify him as an expert on the subject to which his testimony relates."

(Evid. Code, § 720, subd. (a).)

B.     Admissibility of pornographic material

       Hultman contends that the trial court abused its discretion by admitting in

evidence pornographic material found on computer equipment in Hultman's home. He

argues that the trial court should have excluded the material as a sanction for the

prosecutor's violation of Penal Code section 1054.1, and also because the material was

more prejudicial than probative under Evidence Code section 352.

       1.     Timeliness

       Section 1054.1 imposes a duty upon the prosecuting attorney to disclose relevant

material and information to the defendant or his or her attorney. Those disclosures must

be made at least 30 days prior to the trial, unless good cause is shown why a disclosure

should be denied, restricted or deferred. If the material and information becomes known

to, or comes into the possession of, a prosecutor within 30 days of trial, disclosure shall

be made immediately, unless good cause is shown why disclosure should be denied,

restricted or deferred. "Good cause" is limited to threats or possible danger to the safety

of a victim or witness, possible loss or destruction of evidence or possible compromise of

other investigations by law enforcement. (§ 1054.7.)

       Upon a showing that a party has not complied with section 1054.1, a court may

make any order necessary to enforce the provisions of this chapter, including, but not

limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the

testimony of a witness or the presentation of real evidence, continuance of the matter or

                                             16
any other lawful order. Further, the court may advise the jury of any failure or refusal to

disclose and of any untimely disclosure. (§ 1054.5.)

       " 'It is defendant's burden to show that the failure to timely comply with any

discovery order is prejudicial, and that a continuance would not have cured the harm.' "

(People v. Jenkins (2000) 22 Cal.4th 900, 950.) Here, the Sheriff completed its

high-tech crime analysis of the contents of Hultman's computers on January 30, 2013 (the

report). The prosecutor said that he was not aware of the report until late February or

early March. He did not want to mail the report, which was on a computer disc, to the

defense because it was "full of child porn." The prosecutor waited until the next hearing

date on March 14 to inform defense counsel about the report and give him copies of the

exhibits from the report that the prosecution intended to introduce in evidence at trial.

The trial court observed that if the defense had known about the report, it could have sent

someone to pick up the report. The prosecutor acknowledged that he "messed up."

       The trial court stated that the defendant was entitled to a continuance as a sanction

for the late discovery. The trial court also advised the defense that the courts were

impacted and that the court would withdraw all of its rulings to allow the case to be heard

by any judge in the county. After a "thorough discussion" with Hultman, defense counsel

advised the court that his client did not want a continuance and instead, wanted to

proceed to trial.

       It is axiomatic that "[t]he Constitution guarantees a criminal defendant both a

speedy trial and effective representation, and it puts the burden of securing both

guarantees on the state." (People v. Williams (2013) 58 Cal.4th 197, 238.) On this

                                             17
record, we are not persuaded that the trial court impermissibly placed Hultman in an

impossible position by making him choose between a speedy trial and effective

representation of counsel. To the contrary, upon learning of the delayed discovery, the

trial court immediately offered to continue the trial. The court also informed counsel that

the court would withdraw all of its rulings in the case to allow the case to be heard by any

trial court in the county. We draw the reasonable inference that the court was trying to

secure another trial date for the defendant as soon as possible under the circumstances,

and at an earlier date than would be available on the court's own calendar.

       It is the defendant's burden to show that " 'the failure to timely comply with any

discovery order is prejudicial, and that a continuance would not have cured the harm.' "

(People v. McKinnon (2011) 52 Cal.4th 610, 668.) Hultman decided to proceed to trial

rather than accept the trial court's offer to continue the trial. On appeal, Hultman does

not contend that he was prejudiced by the late discovery. Rather, he contends that this

court should reverse the judgment as a consequence for the prosecutor's "habitually

cavalier attitude towards discovery." Absent a showing of prejudice, we cannot conclude

that the trial court abused its discretion by failing to exclude this evidence as a sanction

for late discovery. (Id. at pp. 668-669.)

       2.     Evidence Code section 352

       Hultman argues that the pornographic material was more prejudicial than

probative. He contends that there was insufficient evidence to show that he was

responsible for the pornographic material that was found on his computer equipment and

notes that the record shows that he did not have exclusive access to the computers in his

                                              18
home, which were accessible to a series of roommates and the alleged victims. The

children testified that they used the computers in his home. Hultman points out that there

were no pornographic images in any of the password-protected computer files. Hultman

argues that even if the material had some limited probative value, its admission was

designed to suggest to the jury that he was a "pervert" or an antisocial adult male who

prowled the internet for unsavory pictures of adult men having sexual relations with

children. He maintains that this evidence was manifestly prejudicial and should have

been excluded. Hultman contends that reversal of the judgment is required because in

view of the children's conflicted and conflicting testimony, it is reasonably probable that

an outcome more favorable to the defense would have occurred if the trial court had

excluded the evidence. (People v. Harris (1998) 60 Cal.App.4th 727, 741; People v.

Watson (1956) 46 Cal.2d 818, 836.)

       "The principles governing the admission of evidence are well settled. Only

relevant evidence is admissible (Evid. Code, §§ 210, 350), 'and all relevant evidence is

admissible unless excluded under the federal or California Constitution or by statute.' "

(People v. Harris (2008) 37 Cal.4th 310, 337.) Relevant evidence is evidence "having

any tendency in reason to prove or disprove any disputed fact that is of consequence to

the determination of the action." (Evid. Code, § 210.)

       "A trial court may exclude otherwise relevant evidence when its probative value is

substantially outweighed by concerns of undue prejudice, confusion, or consumption of

time." (People v. Scott (2011) 52 Cal.4th 452, 490.) "Evidence is not prejudicial, as that

term is used in a [Evidence Code] section 352 context, merely because it undermines the

                                             19
opponent's position or shores up that of the proponent. The ability to do so is what makes

evidence relevant." (Ibid.) Evidence may be excluded under Evidence Code section 352

if it "uniquely tends to evoke an emotional bias against the defendant as an individual and

which has very little effect on the issues." (Id. at p. 491.) Evidence should be excluded

as unduly prejudicial when " 'it is of such nature as to inflame the emotions of the jury,

motivating them to use the information, not to logically evaluate the point upon which it

is relevant, but to reward or punish one side because of the jurors' emotional reaction. In

such a circumstance, the evidence is unduly prejudicial because of the substantial

likelihood the jury will use it for an illegitimate purpose.' " (Ibid.)

       On appeal, we review the trial court's ruling on the admissibility of evidence for

abuse of discretion. (People v. Scott, supra, 52 Cal.4th at p. 491.) The trial court has

broad discretion in determining relevant evidence. (People v. Harris, supra, 37 Cal.4th at

p. 337.) "In certain circumstances, evidence of sexual images possessed by a defendant

has been held admissible to prove his or her intent." (People v. Page (2008) 44 Cal.4th 1,

40; see People v. Memro (1995) 11 Cal.4th 786, 865 [photographs of nude, young boys

were admissible as probative of defendant's sexual attraction to young boys and intent to

act on that attraction].) The pornographic material found on computer equipment in

Hultman's home showed older men engaging in sexual activities with younger women or

girls, and was offered to show that Hultman had an interest in that type of sexual conduct.

The trial court did not abuse its discretion when it concluded that the material was

relevant to show Hultman's intent to commit lewd and lascivious acts with young teenage

girls. The pornographic images tend to corroborate Shyann's testimony that she viewed

                                              20
pornography with Hultman. Shyann accurately described the images. She said that the

women in the pornographic images "kind of looked like [] teenager[s] but kind of looked

like [] adult[s]," while the men appeared to be in their 20's and 30's. We are also not

persuaded by the argument that the material was not probative because other people had

access to the computers in Hultman's home. The record shows that Hultman accessed the

hard drive on which some of the pornographic evidence was located as recently as June 8,

2013, when he uploaded photographs of the children from his camera, and that he had

control over the computers in his home.

       Further, in view of the other evidence that supports the verdict, Hultman cannot

establish that the admission of the pornographic material was prejudicial error. Shyann

and Kylie testified that they were each under the age of 14 years when they performed

oral sex on Hultman at his insistence. They each described hearing noises from a back

bedroom when they were in the kitchen and discovering Chelsea and Hultman having

sexual relations. In an interview with the Sheriff, Chelsea acknowledged that she and

Hultman had had sexual relations and that Shyann and Kylie had walked in on them, and

further acknowledged that she had performed oral sex on Hultman. Dylan confirmed that

Hultman would take Shyann into a bedroom almost every time that they went to his

house. In view of the ample evidence showing that Hultman sexually abused Shyann,

Kylie and Chelsea, there is no reasonable probability that he would have achieved a more

favorable result but for the admission of the pornographic material. (People v. Page,

supra, 44 Cal. 4th at p. 46; People v. Watson, supra, 46 Cal.2d at p. 836.)



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                                 DISPOSITION

     The judgment is affirmed.




                                               AARON, J.

WE CONCUR:


McINTYRE, Acting P. J.


O'ROURKE, J.




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