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Name: People v. Lund
Case #: A157205
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 06/01/2021

Officers’ reliance on software program’s data to connect defendant to hard drives containing child pornography files did not violate Sanchez. At defendant’s trial for possessing more than 600 images of child pornography, two police investigators testified that they used a software program called Child Protection System (CPS), commonly used among law enforcement agencies, to search peer-to-peer networks for child pornography. During this investigation, the officers observed one user, identified by a specific ID number created by the peer-to-peer network, who possessed several suspect files. The officers surveilled a business associated with one of the user’s IP addresses and observed defendant, an on-duty California Highway Patrol officer, looking at an electronic device at the same time the ID number was active on the peer-to-peer network. A search pursuant to a warrant revealed several hard drives with deleted child pornography files that were associated with the ID number. A jury convicted Lund of one count of possessing more than 600 images of child pornography. (Pen. Code, § 311.11, subd. (c)(1).) On appeal, Lund argued that the admission of the investigators’ testimony about the software program’s values corresponding to suspected child porn files was inadmissible hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665. Held: Affirmed. When any expert relates to the jury case-specific out-of-court statements and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. Here, the court concluded that the software program’s data were not hearsay because they were not admitted for their truth. The investigators testified that while the data helped provide a correlation between the user’s ID number and the suspected file, the investigators had to personally view the files on defendant’s hard drives to determine that they met the legal description of child pornography. Neither investigator relied on the data values for their truth to opine that any file was child porn.

Trial court was not required to hold a Kelly hearing to evaluate the software program. Lund argued the trial court should have excluded all evidence regarding the CPS software because CPS is an unproven, largely untested, and inherently unreliable computer program. The Kelly/Frye rule governs the admissibility of evidence derived from new scientific techniques. Lund’s argument was based on the misplaced assumption that the CPS software itself is a scientific process or technique, and that it was novel. CPS is not a technique or process; it is a program that deploys a technique and therefore does not implicate Kelly. CPS’s results themselves do not purport to offer any more scientific or technical certainty regarding the data they contain than the manual searches CPS replaced. It is a program that automates the routine police work of finding and recording evidence. Any doubts about whether the software operates in the manner that its creator represents go to the weight, and not the admissibility, of his testimony. Similar to a fingerprint or DNA database, CPS automated the process of searching for computers suspected of containing child pornography. However, it still required additional investigation and human analysis to aid the jury in reaching the conclusion that Lund possessed the prohibited material.

Trial court did not abuse its discretion in allowing the prosecution to play portions of a few files found to contain child pornography. At trial, the prosecution played short clips of files found on each hard drive, and Lund argued that the prejudicial effect of this evidence substantially outweighed its probative value under Evidence Code section 352. Lund pointed out that he did not dispute that the files constituted child porn, merely his knowing possession of them, so he contended the child porn itself was not probative of his guilt. The law is clear that the prosecution was not required to accept defense concessions as a sanitized alternative to the full presentation of its case. This was especially true here, where the videos were not merely circumstantial evidence, but rather constituted direct evidence of one of the elements of the child porn charge against Lund. The prosecution made an effort to tailor the videos, some only a few seconds long, to minimize the time spent displaying child pornography. There was no error.