1

Filed 6/1/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC CURTIS LUND,

Defendant and Appellant.

 A157205

 (Solano County

 Super. Ct. No. FCR310878)

A jury convicted Eric Lund of one count of possession of 

more than 600 images of child pornography, at least 10 of which 

involved a prepubescent minor or a minor under 12 years old, in 

violation of Penal Code section 311.11, subdivision (c)(1). The 

trial court sentenced Lund to five years in prison. 

Lund contends the trial court committed four errors. First, 

he argues the trial court should have excluded some of the data 

produced by a computer program because the data was casespecific, testimonial hearsay under People v. Sanchez (2016) 

63 Cal.4th 665 (Sanchez). Second, he argues the prosecution 

failed to establish that the computer program was reliable and 

generally accepted in the scientific community under People v. 

Kelly (1976) 17 Cal.3d 24 (Kelly) and Sargon Enterprises, Inc. v. 

University of Southern California (2012) 55 Cal.4th 747 (Sargon). 

Third, Lund urges that his conviction should be reversed because 

the prosecutor committed repeated, pervasive misconduct. 
2

Finally, he argues that the trial court abused its discretion under 

Evidence Code section 352 in allowing the prosecution to play for 

the jury a number of child pornography videos. We reject each of 

these arguments and therefore affirm the judgment.

I. BACKGROUND

A. Peer-to-peer networks

Peer-to-peer networks allow sharing of files, including child 

pornography, over the internet. To access each different peer-topeer network, users must download and install software that 

uses the programming protocol specific for that network. 

eDonkey is one example of a peer-to-peer network commonly used 

to share and download child pornography. eMule is a program 

people commonly use to get onto the eDonkey network. 

When a user installs peer-to-peer networking software, the 

software randomly generates a globally unique identifier (GUID), 

which is used to specifically identify the instance of the software 

being used. The software also designates a five-digit port 

number, which is necessary for the software to communicate with 

the network. When a user sends out a search query, the request 

goes to one or more other “peer” computers in the network, which 

in turn propagate the request to other peers, and so on. This 

process exponentially increases the number of computers 

effectively receiving the search request. Each peer receiving the 

query will respond to the original user with a list of files 

matching the query that the peer has available for download. 

Despite the exponential spread of a search query, a user’s query 

will not typically reach all other peers on the peer-to-peer 
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network and a user will not see every file from every computer on 

the network matching the query. When a computer connects to a 

peer-to-peer network, it will automatically start receiving queries 

from other users and returning a list of files that the computer 

has available. Peer-to-peer networks use hash values to identify 

each file being shared. A hash value is like a DNA signature for 

a digital file; it is statistically unique and never changes, so it 

provides a way to authenticate that two digital files are identical, 

even if the names are different. 

B. CPS Software

In August 2014, Vacaville police detective Jeffrey Datzman 

was investigating child pornography cases over peer-to-peer 

networks. One of the tools Datzman used was privatelydeveloped software called the Child Protection System (CPS). 

CPS is the web interface for viewing results from a suite of 

several software tools that each search for child pornography on a 

specific peer-to-peer network.1 It is used around the world in 84 

countries by over 10,000 users, all of whom are law enforcement 

personnel. 

The CPS software suite automates the process of searching 

peer to peer networks. Previously, law enforcement officers 

would have to manually input keyword search terms to discover 

computers that were hosting suspected child pornography and 

then further investigate those GUIDs. By contrast, CPS sends 

1 Some of the CPS components include Peer Spectre, Nordic 

Mule, Gnew Watch, and GT Logger. For simplicity, we use CPS 

to refer both to the web interface and the underlying tools.
4

out search terms continuously. CPS also compares the files listed 

in response to the keyword searches against CPS’s database of 

hash values, which contains the hash values of files that law 

enforcement officers somewhere in the world have previously 

tagged as being child pornography. If there is a match between 

the hash values for the files listed in response to the search and 

the hash values in the CPS database, CPS logs the details of the 

event in a CPS database for police officers to follow up on later. 

CPS logs the filenames and hash numbers of the suspected child 

pornography files being offered; the GUIDs, IP addresses, port 

number, and, in most cases, software used to offer the files; and 

the dates and times CPS detected the GUID with the files. Police 

officers obtain records from internet service providers to 

determine the physical location of the computer associated with 

the GUIDs, IP addresses, and port numbers logged by CPS. 

A match between the hash number of a particular file being 

offered and a hash number in CPS’s database suggests the file is 

likely child pornography. However, because child pornography 

laws can differ from one jurisdiction to another, CPS users are 

trained to always view a file personally in order to determine 

conclusively whether the file constitutes child pornography under 

applicable law. To assist with this, CPS also helps law 

enforcement users create their own separate, local databases of 

hash values called a media library. Where the CPS database 

contains only hash values and not the child pornography files, 

law enforcement users’ media libraries contain both the hash 

values and the corresponding files. Users can use their media 
5

libraries when they cannot download a file from the offering 

computer directly to view it. In such cases, users can compare 

the hash value of the file being offered to the hash value of a file 

in the media library and then use the media library file to 

confirm that the file is child pornography under applicable law. 

C. Investigation of target GUID

When Datzman signed on to CPS in August 2014, he 

noticed that there was one user, identified by a specific GUID, 

who possessed several suspected child pornography files. 

Datzman downloaded a few files from the target GUID and 

confirmed that the files were in fact child pornography under 

California law. This GUID moved between different IP addresses 

but kept returning to a few addresses. This was unique, because 

GUIDs that moved from one IP address to another usually did 

not return to any of the IP addresses. After analyzing the target 

GUID’s behavior, Datzman noticed that the GUID only showed 

activity overnight on Wednesday, Thursday, Friday, and 

Saturday nights. Because law enforcement officers often work 

overnight shifts four nights a week from Wednesday evening 

through Sunday morning, Datzman suspected that the target 

GUID user was a security guard, law enforcement officer, or 

someone else working such a shift. 

Datzman obtained the physical addresses for the IP 

addresses the target GUID was using. Because the target GUID 

was active in the middle of the night when the businesses were 

closed, Datzman did not consider the owners of any of the IP 

addresses to be suspects. The most frequently recurring IP 
6

address in Vacaville belonged to a business called the Yogurt 

Beach Shack, which was owned by two former law enforcement 

officers Datzman knew. Datzman confirmed that the Yogurt 

Beach Shack’s wireless internet (wifi) router was “open,” meaning 

it did not require a password, and could be accessed from outside 

the building. Datzman therefore conducted overnight 

surveillance at the Yogurt Beach Shack in early October 2014. 

During the surveillance, Datzman connected to the Yogurt 

Beach Shack’s router so that he could observe whether any 

devices connected to the router and see such devices’ “mac ID,” 

which is a unique specific identifier for a device. On one night, at

around 1:00 a.m., Datzman saw a device connect to the router, 

and he recorded the mac ID. Datzman then drove around the 

outside of the building to see who was nearby that could be using 

the device. Datzman noticed a California Highway Patrol (CHP) 

vehicle parked near the business. Lund was the sole occupant of 

the vehicle, seated in the driver’s seat and looking down and to 

his right at a lighted object. Datzman then contacted Sergeant 

Jason Johnson in the Vacaville Police Department. Johnson

agreed to contact Lund using a ruse to determine his name. The 

ruse succeeded and Lund told Johnson his name. After Johnson 

spoke to Lund, Lund drove away, and Datzman noticed that the 

mac ID of the device that was using the Yogurt Beach Shack 

router dropped off at the same time. No other devices connected 

to the router that night. Datzman later checked CPS to see if the 

target GUID had been detected at the time that Lund was seen 

at the Yogurt Beach Shack. CPS had no record of it at that IP 
7

address at that time, but it detected the GUID at a different 

router later that night. 

Datzman contacted the CHP and learned from Lund’s 

commanding officer that Lund was a sergeant assigned to the 

Fairfield CHP office, worked alone, and worked a schedule that 

matched the target GUID’s pattern of activity. Lund lived in 

Chico, and stayed in a hotel in Vacaville during the days he was 

working. 

Every CHP patrol vehicle has a computer with software 

installed that, when an officer logs into it, logs activity and also 

activates a global positioning system (GPS) location tracker. 

However, Lund had not logged into the software between June 

and October 2014, so there was no GPS data for him. 

Additionally, the dispatcher had recorded activity for him only 

three times during that span. This paucity of records was 

unusual and surprising. It was common knowledge among CHP 

officers that logging into the vehicle computer would transmit 

location data. 

Datzman arranged with the commanding officer to put a 

GPS tracker on the two patrol cars assigned to CHP sergeants in 

the Fairfield office. The first night after the GPS trackers were 

installed, the GPS tracker showed that the car that Lund had 

been observed driving was stopped for over two hours at a 

location in Cordelia Park near a house with open wifi. CPS 

detected the target GUID with child pornography that night at 

that same location for about two hours. 
8

D. Searches of devices in Lund’s desk, car, and locker

Pursuant to search warrants, Vacaville police officers then 

searched Lund’s desk at work and his personal car. Police found 

a flash drive in the center console of Lund’s car. This flash drive 

did not contain child pornography. In the trunk of the car were 

Lund’s CHP uniforms, his citation book, his old cell phone in a 

box, a USB wifi adaptor, and a tan backpack. Inside the 

backpack were two long range USB wifi adaptors with a panel 

antenna that could be used to pick up a wifi signal from greater 

distances, a laptop, two external hard drives, and three flash 

drives. One of the USB wifi adaptors had a mac ID identical to 

the one Datzman recorded from the router at the Yogurt Beach 

Shack. 

The cell phone and one of the flash drives from the trunk of 

the car did not contain child pornography. This flash drive had 

been connected to a computer in Lund’s home. The other two 

flash drives contained deleted child pornography videos and 

pictures that Datzman forensically recovered. 

The external hard drives together contained over 10,000 

files that Datzman suspected to be child pornography, based on 

their hash values’ matches to the CPS database. Datzman 

reviewed a sample of 73 videos from the hard drives and 

confirmed that they were child pornography, with almost all of 

them containing at least one prepubescent minor. One of the 

hard drives also contained the same version of eMule that the 

target GUID used and the software necessary to use the panel 

antenna. Datzman concluded that one of the hard drives had
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been used to store child pornography since 2012 because one of 

the folders on it indicated that eMule had been used with the 

hard drive since that date. 

The laptop contained a copy of the eMule software with the 

same version number, GUID, and port number that CPS had 

detected. eMule had been used to download over 3,000 complete 

files whose names suggested they were child pornography. Like 

the flash drive from his desk and one of the hard drives, the 

laptop had the software necessary to use the panel wifi antenna. 

The laptop showed it had connected to the router at the Yogurt 

Beach Shack and had run eMule on the night Datzman and 

Johnson observed Lund there, but the program had crashed. The 

laptop also showed it had connected to the router where the IP

address in Cordelia Park was located. The laptop had been used 

to access email and Facebook accounts, but the lack of activity in 

those accounts or information available about the named users 

indicated that the accounts did not belong to real people. 

The laptop’s last wifi connection was to the network at the 

Fairfield Inn in Vacaville an hour before Lund’s arrest. This 

hotel was across the street from the hotel where Lund had a 

reservation and where his car was seen during the day of his 

arrest, before he came to the office. With a panel range antenna, 

the laptop could have accessed the Fairfield Inn’s internet from 

Lund’s room. The laptop’s user viewed child pornography files 

throughout that day, and CPS detected the target GUID as being 

active throughout that day. 
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Lund’s desk, which was known to other officers to be 

unlockable, contained Lund’s active cell phone and three flash 

drives. All three flash drives showed they had been used with 

the computer on Lund’s desk. None of the devices contained 

pornography, but one flash drive contained a copy of the eMule 

program and the software for the long range wifi adaptor found 

in the trunk of Lund’s car. 

About a week after Vacaville police searched Lund’s desk 

and personal car, CHP officers searched Lund’s locker at the 

Fairfield CHP building. They found hotel breakfast cards and a 

Diskgo flash drive with the first three digits of Lund’s CHP badge 

number written on it. CHP Officer Ryan Duplissey took the 

Diskgo flash drive for analysis. In his report, Duplissey 

originally stated that the flash drive was found connected to 

Lund’s work computer, but he later corrected his report to reflect 

that it was found in his locker. Datzman later acquired the drive 

and performed his own analysis. Both analyses showed the flash 

drive contained documents associated with Lund as well as 10 

child pornography files that had been marked for deletion but 

could be forensically recovered. CHP officers also searched 

electronic devices found in Lund’s home but did not find any child 

pornography on them. 

E. Procedural history

After Lund was arrested and charged, pretrial litigation 

relating to the constitutionality of the searches stretched over the 

course of several years and involved two writ petitions to this 

court. A jury trial in the summer of 2018 resulted in a mistrial. 
11

At the second trial in October 2018, the prosecution played for 

the jury brief portions of some of the child pornography files 

found on each device that Datzman had confirmed were child 

pornography. 

Unlike the first trial, Lund testified in his own defense. He 

denied ever possessing or downloading child pornography. Lund 

said he was sitting in the Yogurt Beach Shack parking lot to eat 

and denied having a laptop in the car or connecting to the 

internet. He said the CHP computer in his vehicle, which was to 

the driver’s right, would glow at night. He denied driving the 

patrol car that was recorded by GPS in Cordelia Park on the 

same night that CPS detected activity there and said he was in 

the office the whole night. On cross-examination, however, he 

admitted that he sent his wife a text that night saying he was 

going to go out and drive for fresh air. Lund also denied that the 

electronic devices found in his car, desk, or locker were his. He 

claimed other officers used his desk when he was not there. Lund 

testified that he never locked his locker because he had once 

forgotten the key at home in Chico and been unable to get his 

uniform, but he admitted on cross-examination this was not 

general knowledge. He said he kept hotel breakfast cards in his 

desk, not his locker, so someone at CHP must have moved them 

into the locker. 

Lund explained he did not use the CHP computer in the 

patrol car because he thought it was unsafe. Lund said he 

instead used his radio to make requests through dispatch. He 

claimed the records of his radio activity were not obtained from 
12

the correct office, and the proper records would have shown more 

activity. Lund admitted he had been suspended in 1996 for using 

a screensaver on his work computer that displayed adult 

pornography. Lund claimed that Datzman planted the evidence 

against him but had no theory for why. 

In rebuttal, the prosecution called retired CHP Sergeant 

Steven Lott, who testified that officers used to tell him they could 

not reach Lund on the radio during his shifts. Lott also recalled 

that Lund would leave the office in the middle of the night 

complaining about the office being too hot or needing to stay 

awake, but it seemed like an excuse to leave the office. 

The jury found Lund guilty and the trial court sentenced 

him to five years in prison. 

II. DISCUSSION

A. Sanchez error

Lund first challenges the trial court’s admission of the hash 

value information from the CPS database. He contends William

Wiltse’s and Officer Datzman’s testimony about the CPS hash 

values corresponding to suspected child pornography files was 

inadmissible hearsay because the hash value database consists of 

out of court statements made by unidentified officers across the 

country and around the world.2 He further argues the admission 

of this testimony violated his Sixth Amendment right to confront 

and cross-examine the witnesses against him. 

2 Wiltse oversees the development of the CPS software, and has 

himself written certain components of the software.
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Relevant legal principles and standard of review

“[A] hearsay statement is one in which a person makes a 

factual assertion out of court and the proponent seeks to rely on 

the statement to prove that assertion is true. Hearsay is 

generally inadmissible unless it falls under an exception.” 

(Sanchez, supra, 63 Cal.4th at p. 674.) “Documents like letters, 

reports, and memoranda are often hearsay because they are 

prepared by a person outside the courtroom and are usually 

offered to prove the truth of the information they contain.” (Id. at 

pp. 674.) However, “ ‘[o]nly people can make hearsay statements; 

machines cannot.’ ” (Id. at p. 690, fn. 16.)

The use of hearsay potentially conflicts with defendants’ 

rights under the Sixth Amendment to the U.S. Constitution to 

confront witnesses against them. (Sanchez, supra, 63 Cal.4th at 

pp. 679–680.) As the California Supreme Court summarized, “In 

light of our hearsay rules and Crawford [v. Washington (2004) 

541 U.S. 36 (Crawford)], a court addressing the admissibility of 

out-of-court statements must engage in a two-step analysis. The 

first step is a traditional hearsay inquiry: Is the statement one 

made out of court; is it offered to prove the truth of the facts it 

asserts; and does it fall under a hearsay exception? If a hearsay 

statement is being offered by the prosecution in a criminal case, 

and the Crawford limitations of unavailability, as well as crossexamination or forfeiture, are not satisfied, a second analytical 

step is required. Admission of such a statement violates the right 

to confrontation if the statement is testimonial hearsay, as the 

high court defines that term.” (Id. at p. 680, italics omitted.)
14

Sanchez applied both steps of this inquiry to expert 

testimony. (Sanchez, supra, 63 Cal.4th at pp. 680, 687.) Experts 

had long been allowed to rely on hearsay when offering their 

opinions. (Id. at p. 676.) This rule arose because experts 

frequently acquire general knowledge in their field of expertise 

from third parties, but the rule was extended to apply to casespecific facts as well. (Id. at pp. 676, 678–679.) Case-specific 

facts are “those relating to the particular events and participants 

alleged to have been involved in the case being tried.” (Id. at 

p. 676.) Courts had recognized the tension between experts’ need 

to consider extrajudicial matters with defendants’ interest in 

avoiding the substantive use of unreliable hearsay. (Id. at 

p. 679.) They had tried to balance these concerns by generally 

allowing experts to explain the bases for their opinions, even 

when those bases were general or case-specific hearsay, subject to 

an instruction that juries should only consider such hearsay as 

the basis for the expert’s opinion and not for its truth. (Ibid.)

Sanchez concluded this was a mistake because a jury 

cannot avoid considering the truth of case-specific hearsay 

underlying an expert’s testimony. (Sanchez, supra, 63 Cal.4th at 

pp. 679, 684.) Sanchez explained, “When an expert is not 

testifying in the form of a proper hypothetical question and no 

other evidence of the case-specific facts presented has or will be 

admitted, there is no denying that such facts are being 

considered by the expert, and offered to the jury, as true.” (Id. at 

p. 684.) The court therefore adopted “the following rule: When 

any expert relates to the jury case-specific out-of-court 
15

statements, and treats the content of those statements as true 

and accurate to support the expert’s opinion, the statements are 

hearsay. It cannot logically be maintained that the statements 

are not being admitted for their truth. If the case is one in which 

a prosecution expert seeks to relate testimonial hearsay, there is 

a confrontation clause violation unless (1) there is a showing of 

unavailability and (2) the defendant had a prior opportunity for 

cross-examination, or forfeited that right by wrongdoing.” (Id. at 

p. 686, fn. omitted.) Sanchez noted, however, that experts can 

still “rely on information within their personal knowledge, and 

they can give an opinion based on a hypothetical including casespecific facts that are properly proven. They may also rely on 

nontestimonial hearsay properly admitted under a statutory 

hearsay exception.” (Id. at p. 685.)

As to the second step of the hearsay inquiry, Sanchez

reviewed several Supreme Court decisions dealing with 

statements made to police officers and summarized, “Testimonial 

statements are those made primarily to memorialize facts 

relating to past criminal activity, which could be used like trial 

testimony. Nontestimonial statements are those whose primary 

purpose is to deal with an ongoing emergency or some other 

purpose unrelated to preserving facts for later use at trial.” 

(Sanchez, supra, 63 Cal.4th at p. 689.) 

Sanchez did not address the standard of review for 

determining whether a statement is case-specific, testimonial 

hearsay. As the first step of the analysis is a “traditional hearsay 

inquiry” into whether a statement was made out of court and is 
16

offered for its truth, we apply the abuse of discretion standard at 

this step. (Sanchez, supra, 63 Cal.4th at p. 680.) “A trial court’s 

decision to admit or exclude evidence is reviewed for abuse of 

discretion, and it will not be disturbed unless there is a showing 

that the trial court acted in an arbitrary, capricious, or absurd 

manner resulting in a miscarriage of justice.” (People v. Wall

(2017) 3 Cal.5th 1048, 1069.) By contrast, Sanchez’s second step, 

concerning whether a statement is testimonial, implicates the 

constitutional right of confrontation, so we independently review 

that issue. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.)

Analysis

Lund contends testimony from both Wiltse and Datzman 

violated Sanchez because both witnesses relied on CPS’s 

database of hash values corresponding to previously identified 

child pornography. As to Wiltse, Lund asserts that Wiltse 

testified that CPS uses its hash value database to search peer-topeer networks and that officers can determine whether a file 

offered by a suspect is child pornography, even if they cannot 

download the file, by comparing the file’s hash value to CPS’s 

hash value database. Lund also contends that both Wiltse and 

Datzman testified that CPS showed the target GUID downloaded 

a file that CPS had tagged as child pornography. As to Datzman, 

Lund asserts that Datzman opined that the hash value of a file is 

very important to determining whether the file is child 

pornography. Lund also cites Datzman’s testimony that he used 

a computer program to compare the hash values of files on the 

hard drives found in Lund’s trunk to the CPS hash value 
17

database and Datzman’s opinion that the hard drive had been 

using eMule to obtain child pornography as early as 2012. 

Lund argues this testimony violates Sanchez because it is 

case-specific, testimonial hearsay. He contends it is case-specific 

hearsay because the entirety of the case against him was based 

on the CPS data and CPS cannot work without the assumption 

that whoever put a hash value in the CPS database correctly 

tagged it as child pornography. He argues the CPS hash value 

data is testimonial because it represents the fruits of previous 

law enforcement investigations. 

We conclude the trial court did not abuse its discretion in 

determining the CPS hash values were not hearsay in this case 

because they were not admitted for their truth, so we do not 

reach the question of whether the hash values are testimonial.3 

Preliminarily, Lund’s Sanchez arguments regarding the 

CPS hash values rest on a misinterpretation of the record, 

stemming from the fact that the CPS software relies on hash 

values in two separate databases. First, CPS maintains a 

database of hash values on its own servers, without associated 

files. It uses this database as part of its searches of peer-to-peer 

networks. CPS uses keywords to search the peer-to-peer 

networks, then matches the hash values of the files that are 

listed in response to those keyword searches against the CPS 

3 While we apply the abuse of discretion standard in this 

case, as explained above, we would reach the same conclusion 

even if we were to independently review the trial court’s 

conclusion that the CPS hash values are not hearsay.
18

database of hash values of suspected child pornography. In cases 

where the hash values match, the software logs the file being 

offered on the peer to peer network as suspected child 

pornography and saves the record for law enforcement officials to 

review later. 

Second, CPS assists law enforcement officers with 

maintaining a media library, which is a local database of child 

pornography files and associated hash values. Police officers use 

this media library, not the CPS hash value database, to 

determine whether a file that they cannot download from a 

suspect is in fact child pornography. The police officer does so by 

matching the hash value of the suspect’s file to the hash value of 

a file in the library. Using the copy of the file in the media 

library, the officer can opine conclusively that the file is child 

pornography. 

Wiltse and Datzman explained carefully and repeatedly 

that the only way to determine whether a file is child 

pornography is for an officer to personally view a file or have 

personally viewed an identical copy of the file (meaning a 

matching hash value) in the past. This is because the police 

officer who input a hash value in the CPS database could have 

erred, and because the legal definitions of child pornography 

differ between jurisdictions. Wiltse testified consistently that the 

hash value database exists to create criminal leads about 

suspected but unconfirmed child pornography, not to provide 

definitive proof that any file is child pornography. Moreover, 

Datzman’s conclusion that the hard drive had been used to store 
19

downloaded child pornography since 2012 was not based on the 

CPS hash values, but rather on the fact that there were folders 

indicating that eMule had been used with the hard drive since 

then. 

This proper understanding of the record regarding CPS 

demonstrates why Lund’s Sanchez argument fails at the first 

step. “ ‘Out-of-court statements that are not offered for their 

truth are not hearsay under California law [citations], nor do 

they run afoul of the confrontation clause.’ ” (People v. Bell (2019) 

7 Cal.5th 70, 100.) Neither Wiltse nor Datzman relied on the 

CPS hash values for their truth to opine that any file was child 

pornography. The prosecution used Wiltse’s and Datzman’s 

testimony about the hash values only to explain Datzman’s 

course of conduct in investigating the GUID and Lund. Lund’s 

defense that Datzman or someone else planted the evidence in 

his car, desk, and locker made it fair for the prosecution to show 

that Datzman followed reasonable leads. This is an example of 

the principle that “ ‘ “ ‘[e]vidence of a declarant’s statement that 

is offered to prove that the statement imparted certain 

information to the hearer and that the hearer, believing such 

information to be true, acted in conformity with that belief . . . is 

not hearsay, since it is the hearer’s reaction to the statement that 

is the relevant fact sought to be proved, not the truth of the 

matter asserted in the statement.’ ” ’ ” (Ibid.) Even if every entry 

in the CPS hash value database were wrong, such hypothetical 

errors would not undermine the prosecution’s proof of the 

elements of the charge against Lund. The prosecution proved the 
20

files found on devices associated with Lund were pornography 

either by showing them to the jury or by having Datzman testify 

that he personally viewed them and verified that they met the 

legal description.4

Even if Lund were correct that the CPS hash value data 

constituted hearsay that was also testimonial, its admission was 

harmless beyond a reasonable doubt. (See Sanchez, supra, 

63 Cal.4th at p. 698 [applying federal standard of harmlessness 

beyond a reasonable doubt to violation of Confrontation Clause 

through admission of testimonial hearsay].) At its core, the 

prosecution proved its case by establishing that the police found 

child pornography on electronic devices found in Lund’s locker 

and in the trunk of his car. These devices were found in locations 

within his control, particularly his car. This evidence is 

circumstantial but strongly persuasive, especially because Lund 

4 The facts of this case are therefore distinguishable from 

cases like U.S. v. Juhic (8th Cir. 2020) 954 F.3d 1084, 1088–1089, 

and U.S. v. Bates (11th Cir. 2016) 665 Fed.Appx. 810, 814–815, 

which held that CPS reports were inadmissible testimonial 

hearsay. In those cases, it appears the prosecution used the 

reports’ notation that certain files had been previously identified 

as child pornography as evidence that files were indeed child 

pornography. (Juhic, at p. 1089 [CPS reports were “out-of-court 

statements offered for the truth of the matter asserted: that the 

videos and images were child pornography”]; Bates, at p. 815 

[“The record shows that the government used the reports to 

demonstrate the steps of [the officer’s] investigation and to prove 

that the files [the defendant] downloaded were child 

pornography”].) There is no indication in these decisions that 

any witnesses identified any files as child pornography after 

viewing them, like Datzman did here.
21

does not explain how someone would have gained access to his 

car. 

Lund notes that the cell phone and the flash drive found in 

his trunk, which had been connected to a computer in his home, 

contained no child pornography. He therefore asserts that none 

of the digital devices containing child pornography could be 

linked to him. This argument ignores the critical fact of the 

devices found in the trunk of his car, as well as the flash drive 

found in his locker. That flash drive, which contained deleted 

child pornography, could be tied to Lund both by its location and 

by the presence of Lund’s files on it. It was not common 

knowledge that Lund’s locker was unlocked. Lund contended the 

devices were planted, but he offered the jury no reason why 

Datzman or any of the officers who performed the searches of his 

car, desk, and locker would have wanted to frame him or had the 

opportunity to do so.

Lund also takes the position that the theory that he used 

eMule to download child pornography was essential to the 

prosecution’s case. He observes that the CPS evidence helped 

refute Lund’s defense that the electronic devices were planted by 

showing Lund was at the same locations as the devices 

containing the pornography. While the CPS evidence was not 

legally essential, it was certainly helpful for rebutting Lund’s 

defense. But the CPS data that rebutted the defense was the 

date, time, and IP address information, since these types of data 

helped establish the connections with Lund’s movements. The 

GUID, eMule version number, and port also helped connect Lund 
22

to the laptop found in his trunk. The CPS hash values were not 

helpful to this rebuttal. For example, if CPS had logged the 

target GUID as offering some other type of file, like copyrighted 

movies or music, the CPS location-related and laptop-related 

data would have been just as powerful for the prosecution’s effort 

to undermine Lund’s defense. 

Lund does not argue CPS’s date, time, IP address, GUID, 

version number, or port data are hearsay, nor could he, because 

they were all generated automatically by the CPS software. 

(Sanchez, supra, 63 Cal.4th at p. 690, fn. 16 [“ ‘Only people can 

make hearsay statements; machines cannot’ ”].) Lund instead 

appears to assume that if the CPS hash values were hearsay, the 

rest of the CPS data would have been excluded. This assumption 

is unfounded, as the hash values could easily have been omitted 

from the relevant exhibits and testimony. Lund also maintains 

the CPS hash value data helped establish that Datzman 

conducted a thorough investigation, in response to Lund’s 

attempts to show the investigation was flawed. This is true, but 

Lund’s attacks on the investigation’s minor flaws were not so 

strong that the CPS hash value evidence was necessary to refute 

them, and thus the admission of that evidence—even if 

erroneous—did not cause prejudice. 

B. Kelly and Sargon error

In his second argument, Lund argues the trial court should 

have granted his motion in limine to exclude evidence of CPS 

entirely because the prosecution failed to establish that CPS 

satisfied the standard for admission of new scientific evidence 
23

under Kelly, supra, 17 Cal.3d 24, and because the trial court 

failed to perform its gatekeeping function under Sargon, supra,

55 Cal.4th 747. He argues the admission of CPS evidence 

rendered his trial fundamentally unfair in violation of the 14th 

Amendment and was not harmless under the federal or state 

standards. 

Relevant legal principles and standard of review

a. Kelly 

“Kelly was the genesis of a rule, previously called the 

‘Kelly/Frye rule,’ [5] that governs the admissibility of evidence 

derived from new scientific techniques. ‘Under Kelly, the 

proponent of evidence derived from a new scientific technique 

must establish that (1) the reliability of the new technique has 

gained general acceptance in the relevant scientific community, 

(2) the expert testifying to that effect is qualified to give an 

opinion on the subject, and (3) the correct scientific procedures 

were used.’ ” (People v. Jones (2013) 57 Cal.4th 899, 936.) “The 

purpose of these threshold requirements—commonly referred to 

as the Kelly test—is to protect against the risk of credulous juries 

attributing to evidence cloaked in scientific terminology an aura 

of infallibility.” (People v. Peterson (2020) 10 Cal.5th 409, 444 

(Peterson).) 

“Not every subject of expert testimony needs to satisfy the 

Kelly test. Courts determining whether Kelly applies must 

5 “See Frye v. U.S. (D.C.Cir.1923) 293 F. 1013, 1014, 

superseded by statute as explained in Daubert v. Merrell Dow 

Pharmaceuticals, Inc. (1993) 509 U.S. 579 [(Daubert)].”
24

consider, first, whether the technique at issue is novel, because 

Kelly ‘ “only applies to that limited class of expert testimony 

which is based, in whole or part, on a technique, process, or 

theory which is new to science and, even more so, the law.” ’ 

[Citation.] Second, courts should consider whether the technique 

is one whose reliability would be difficult for laypersons to 

evaluate. A ‘Kelly hearing may be warranted when “the 

unproven technique or procedure appears in both name and 

description to provide some definitive truth which the expert 

need only accurately recognize and relay to the jury.” ’ [Citation.] 

Conversely, no Kelly hearing is needed when ‘[j]urors are capable 

of understanding and evaluating’ the reliability of expert 

testimony based in whole or in part on the novel technique.” 

(Peterson, supra, 10 Cal.5th at p. 444.) 

“Appellate courts review de novo the determination that a 

technique is subject to Kelly.” (People v. Jackson (2016) 1 Cal.5th 

269, 316.)

b. Sargon

Regardless of whether expert evidence relates to a new 

scientific technique under Kelly, a trial court must ensure that 

expert testimony has a sufficient basis to merit the jury’s 

consideration. (Sargon, supra, 55 Cal.4th at p. 770.) “[U]nder 

Evidence Code sections 801, subdivision (b), and 802, the trial 

court acts as a gatekeeper to exclude expert opinion testimony 

that is (1) based on matter of a type on which an expert may not 

reasonably rely, (2) based on reasons unsupported by the 

material on which the expert relies, or (3) speculative.” (Id. at 
25

pp. 771–772.) “The trial court’s preliminary determination 

whether the expert opinion is founded on sound logic is not a 

decision on its persuasiveness. The court must not weigh an 

opinion’s probative value or substitute its own opinion for the 

expert’s opinion. Rather, the court must simply determine 

whether the matter relied on can provide a reasonable basis for 

the opinion or whether that opinion is based on a leap of logic or 

conjecture. The court does not resolve scientific controversies. 

Rather, it conducts a ‘circumscribed inquiry’ to ‘determine 

whether, as a matter of logic, the studies and other information 

cited by experts adequately support the conclusion that the 

expert’s general theory or technique is valid.’ [Citation.] The 

goal of trial court gatekeeping is simply to exclude ‘clearly invalid 

and unreliable’ expert opinion. [Citation.] In short, the 

gatekeeper’s role ‘is to make certain that an expert, whether 

basing testimony upon professional studies or personal 

experience, employs in the courtroom the same level of 

intellectual rigor that characterizes the practice of an expert in 

the relevant field.’ ” (Id. at p. 772.)

“Except to the extent the trial court bases its ruling on a 

conclusion of law (which we review de novo), we review its ruling 

excluding or admitting expert testimony for abuse of discretion.” 

(Sargon, supra, 55 Cal.4th at p. 773.)

Analysis

a. Kelly

Lund argues the trial court should have excluded all 

evidence regarding CPS under Kelly because CPS is an unproven, 
26

largely untested, and inherently unreliable computer program. 

He contends it had the appearance of reliability but there was no 

evidence that CPS was widely accepted or that CPS followed the 

correct procedures. 

Lund’s argument bypasses the threshold Kelly question of 

whether the testimony about CPS is part of “ ‘ “that limited class 

of expert testimony which is based, in whole or part, on a 

technique, process, or theory which is new to science and, even 

more so, the law,” ’ ” whether it “ ‘appears in both name and 

description to provide some definitive truth which the expert 

need only accurately recognize and relay to the jury,’ ” and 

whether jurors “ ‘are capable of understanding and evaluating’ 

the reliability of expert testimony based in whole or in part” on 

CPS. (Peterson, supra, 10 Cal.5th at p. 444.) Instead, he simply 

assumes both that CPS itself is a scientific process or technique, 

rather than a program using such a technique, and that it was 

novel. These assumptions are misplaced. CPS is not a technique 

or process; it is a program that deploys a technique or executes a 

process. (Cf. People v. Nolan (2002) 95 Cal.App.4th 1210, 1215 

[“a Kelly/Frye hearing is not required for new devices; it applies 

to new methodologies”]; People v. Lazarus (2015) 238 Cal.App.4th 

734, 782–786 [distinguishing between new DNA test kit and the 

existing technique it used].) And the technique or process that 

CPS uses is not novel, nor is it so persuasive that it threatens to 

beguile a jury with misleading scientific certainty.

Before CPS, a police investigator investigating peer-to-peer 

networks had to manually enter search terms in a software 
27

program, record the results, and follow up on leads by obtaining 

records from internet service providers to connect IP addresses to 

physical locations. The only novelty in CPS lies in its approach of 

automating the pre-existing search process. Instead of officers 

needing to perform manual searches during working hours and 

noting the pertinent information regarding any leads, CPS runs 

searches around the clock and has the computer log the relevant 

details regarding leads. (U.S. v. Thomas (2d Cir. 2015) 788 F.3d 

345, 348 [describing CPS’s operation].) CPS’s process or 

technique, then, is simply to perform the same searches that law 

enforcement officers used to do, but in larger volume and at all 

times of the day, and record the results for later perusal.

CPS’s ability to generate a larger volume of search results 

over a longer period of time undoubtedly makes it a useful, timesaving device. It also unlocks the possibility of using the search 

results for different purposes, such as the prosecution’s approach 

here of using CPS results to map the behavior and location of the 

target GUID over time. But 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. Computers are now commonplace, so the general public 

can be expected to be generally familiar with the notions that 

software can repeatedly perform simple tasks that previously 

would have taken extensive human labor to complete in the same 

quantity and that the resulting quantity of data can be analyzed 

and used in different ways that were not possible before. We do 

not see how CPS’s addition of automation to the routine police 
28

work of finding and recording evidence is so mysterious or 

seemingly authoritative that it would be difficult for laypersons 

to understand or evaluate it. As a federal district court remarked 

when considering the admissibility of evidence from software like 

CPS, “Computer programming is not a scientific theory or 

technique, it is not new or novel, and it does not implicate the 

[c]ourt’s responsibility to keep ‘junk science’ out of the courtroom. 

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.” (United States v. Blouin (W.D. 

Wash., Aug. 15, 2017, No. CR16-307 TSZ) 2017 WL 3485736, *7.)6

The prosecution’s use of CPS can be analogized to the 

computerized fingerprint matching program challenged in People 

v. Farnam (2002) 28 Cal.4th 107. In that case, the police had 

used a computerized database for fingerprint matching to 

produce a list of candidates, including the defendant, whose 

fingerprints resembled those at the crime scene. (Id. at p. 159.) 

Fingerprint analysts then compared the defendant’s fingerprint 

to a fingerprint found at the crime scene and concluded they 

matched. (Ibid.) The California Supreme Court held that the 

evidence regarding the computerized fingerprint matching 

program did not implicate Kelly. (Id. at p. 160.) The expert who 

6 Though the federal Daubert standard for admission of 

scientific evidence differs somewhat from the Kelly standard, 

appellate decisions affirming the admission of scientific evidence 

under that standard are relevant to the Kelly analysis. (People v. 

Venegas (1998) 18 Cal.4th 47, 88 [relying in part on state court 

decisions using the Daubert standard]; People v. Buell (2017) 

16 Cal.App.5th 682, 690–691 [same].)
29

relied on the database never claimed that the database positively 

identified the defendant’s print. (Ibid.) The jurors could 

determine the reliability of the database by comparing the 

defendant’s fingerprint to that found at the crime scene. (Ibid.) 

And no opinion regarding the fingerprint identification was based 

on the computer results. (Ibid.) The mere use of the computer 

system to narrow the range of potential candidates was 

insignificant because the prosecution relied on the longestablished method of expert fingerprint comparison to show the 

defendant’s prints matched. (Ibid.)

People v. Johnson (2006) 139 Cal.App.4th 1135 followed 

People v. Farnam in the context of a DNA database. There, a lab 

technician obtained a DNA profile obtained from analysis of a 

sexual assault examination kit taken from the victim. (Johnson, 

at p. 1143.) The technician submitted the sample to a 

computerized DNA database and found a match to the defendant. 

(Ibid.) A blood sample was then taken from the defendant, and 

the technician matched the DNA profiles of the rape kit sample 

and the defendant’s sample. (Ibid.) The court affirmed the 

admission of this DNA evidence, in part because the DNA 

analysis techniques at issue had been generally accepted for some 

time. (Id. at p. 1149.) But the court further rejected the 

defendant’s argument that the expert erred in calculating the 

probability of a match between a random person and the rape kit 

DNA profile. (Ibid.) The court stated, “the use of database 

searches as a means of identifying potential suspects is not new 

or novel,” because DNA databases and data bank statutes have 
30

been enacted in all 50 states and by the federal government. 

(Ibid.) The court made clear that its “core point” was that “the 

database search merely provides law enforcement with an 

investigative tool, not evidence of guilt.” (Id. at p. 1150.) In the 

court’s view, “the means by which a particular person comes to be 

suspected of a crime—the reason law enforcement’s investigation 

focuses on him—is irrelevant to the issue to be decided at trial, 

i.e., that person’s guilt or innocence, except insofar as it provides 

independent evidence of guilt or innocence.” (Ibid.)

Like the fingerprint database in People v. Farnam, supra, 

28 Cal.4th at page 159 or the DNA database in People v. Johnson, 

supra, 139 Cal.App.4th at page 1149, CPS automated the process 

of searching for computers suspected of containing child 

pornography. But as in those cases, a police officer, Datzman—

not CPS—made the ultimate conclusion that the files on the 

devices linked to Lund were child pornography. The 

prosecution’s use of CPS went slightly beyond the fingerprint or 

DNA databases in those cases, since the prosecution relied on 

CPS to match the target GUID’s patterns and locations to Lund’s 

schedule and movements. In this regard, the CPS information 

could be said to provide, as the court put it in Johnson, at page 

1150, evidence of guilt independent of the child pornography 

found on the devices. Nonetheless, we do not view this fact as 

significant because, as in People v. Farnam, the reliability of this 

information was readily apparent to the jury.

The CPS data had no aura of authority on its own because 

CPS had no records mentioning Lund specifically or matching to 
31

an address that could be tied to him. The CPS evidence was only 

persuasive to the extent that the target GUID’s behavior and 

locations matched Lund’s schedule and movements, and the jury 

was well-equipped to evaluate whether the two matched. The 

prosecution’s evidence on that point was also strong. At precisely 

the time that Datzman observed a device access the router at the 

Yogurt Beach Shack and then drop off, Datzman and Johnson 

observed Lund in his police car outside the business and then 

drive away. The long range antenna found in Lund’s trunk 

matched the mac ID Datzman observed access the router. The 

antenna was used with the laptop found in the trunk. The laptop 

had accessed the router at the Yogurt Beach Shack at the same 

time Lund was there. The laptop also had a copy of eMule with 

the same GUID and port number that CPS detected. The laptop 

accessed the router near Cordelia Park, at the same time that 

CPS detected the GUID there and the police car Lund was 

driving was located by GPS there. CPS detected the GUID using 

the Fairfield Inn internet at the same time Lund’s car was 

observed at the hotel nearby, where he also had a reservation. 

The only point on which CPS did not match Lund’s movements 

was that CPS did not detect the GUID at the Yogurt Beach Shack 

when Lund was there. But Datzman’s later analysis of the laptop 

suggested it was because the eMule program crashed when Lund 

was trying to use it there. 

The jury could evaluate the credibility of the individual 

witnesses’ testimony that the prosecution used to establish 

Lund’s movements, and then determine for itself whether that 
32

testimony matched the data from CPS. CPS did not have any 

particular heightened power to dazzle the jury, so there was no 

need to hold a Kelly hearing to evaluate it. 

b. Sargon

Even though Kelly did not apply to the CPS evidence, the 

trial court was still obligated under Sargon to exclude the CPS 

testimony if it was “(1) based on matter of a type on which an 

expert may not reasonably rely, (2) based on reasons unsupported 

by the material on which the expert relies, or (3) speculative.” 

(Sargon, supra, 55 Cal.4th at pp. 771–772.) Lund contends 

Wiltse’s and Datzman’s expert testimony based on CPS failed 

under Sargon because there was insufficient evidence to show 

that CPS reliably worked. We disagree.

The trial court did not abuse its discretion in finding Wiltse 

provided sufficient information to demonstrate CPS was reliable 

enough to be presented to the jury. Wiltse opined directly, as an 

expert, that the software is reliable and widely used in 84 

countries by over 10,000 licensed users. Wiltse wrote the code for 

many of the tools in the CPS, and he oversaw the development of 

others as a supervisor. Wiltse had never had a complaint from 

users that CPS’s leads were unsubstantiated. CPS itself had 

never been hacked or corrupted by an external source. Wiltse 

tested the program extensively in a closed environment to ensure 

its accuracy before using it on the wider internet. Wiltse 

explained this initial testing was sufficient because there was no 

way to test it outside the closed environment and until the peerto-peer network protocol changed, there was no need to change 
33

the CPS software. Wiltse had testified before as an expert in 

Oregon, Illinois, Utah, New Mexico, Vermont, and Florida, and 

had twice participated in court-ordered testing of the program for 

federal courts in California. Wiltse was not aware of any 

convictions ever being reversed as a result of him being allowed 

to testify about CPS. 

Lund offers several theories as to how Wiltse failed to prove 

CPS’s reliability, such as the contentions that Wiltse improperly 

assumed that the peer-to-peer protocols did not change, failed to 

show the software remained reliable after its release, relied on 

the absence of anecdotal reports of error to conclude the software 

was reliable, and did not subject the software to third-party 

testing. These arguments are speculative. Lund cross-examined 

Wiltse at the pre-trial hearing and at trial about any flaws in 

CPS or need for third party testing, but he did not succeed in 

casting any doubt on its operations. Nor has Lund presented in 

this court any specific reasons to discount Wiltse’s testimony. To 

the contrary, the trial court could have reasonably concluded that 

the pre-release testing and track record of success demonstrated 

that CPS was sufficiently reliable to provide the basis for Wiltse’s 

and Datzman’s testimony. 

Lund contends Wiltse should have provided more detail 

about how CPS worked, such as its source code and how it 

determined what items to search for and where to search for 

them. He also argues there was no evidence about how CPS 

stored information, how it chose what information to store, and 

how CPS took information from the peer-to-peer network and 
34

saved it within the CPS program. But Wiltse explained that CPS 

searches using terms commonly associated with child 

pornography files, and its different component programs searched 

different peer-to-peer networks that commonly offered child 

pornography. He talked about how CPS populated its database 

with information other computers provided in response to queries 

of the peer-to-peer networks or, in the case of hash values, by 

CPS users worldwide. He also detailed how the CPS component 

used here, Nordic Mule, logs its own dates and times that files 

are being offered and makes direct connections to computers 

hosting suspected child pornography to verify those IP addresses, 

so that those fields in its database are absolutely accurate. Lund 

does not cite authority for or explain how technical detail about 

the source code or algorithms was required (or even helpful) to 

establish CPS’s reliability.

Finally, we note that many courts have concluded CPS is 

sufficiently reliable to provide probable cause for a search under 

the Fourth Amendment. (E.g., U.S. v. Thomas, supra, 788 F.3d 

at p. 353 [“we discern no error—much less, clear error—in the 

District Court’s finding that CPS was a reliable tool that could 

serve as the basis of a search warrant affidavit”]; U.S.A. v. 

McKinion (C.D. Cal., July 21, 2017, No. 2:14-CR-00124-CAS-1) 

2017 WL 3137574, at *4, fn. 7; U.S. v. Collins (S.D. Iowa 2009) 

753 F.Supp.2d 804, 809 [Peer Spectre, one of the CPS component 

tools, “is routinely and widely used by law enforcement officers to 

conduct [peer-to-peer] investigations, with wide-ranging 

acceptance for reliability,” notwithstanding the defendant’s 
35

expert’s claims to the contrary]; U.S. v. Naylor (S.D. W.Va. 2015) 

99 F.Supp.3d 638, 643 [finding, based in part on police officer’s 

experience of 100% reliability of CPS in 50 cases, that “CPS 

software appears to be a reliable investigative tool for law 

enforcement”]; People v. Worrell (N.Y. Sup. Ct. 2018) 71 N.Y.S.3d 

839, 854, affd. (N.Y. App. Div. 2019) 170 A.D.3d 1048 [noting 

how numerous state and federal courts had rejected Fourth 

Amendment challenges to the use of CPS in part because courts

“have repeatedly found CPS to be . . . a reliable investigative 

tool”].) Lund has cited and our research has discovered no case 

that has determined in any context that evidence from CPS or 

programs like it is unsupported or unreliable. The apparently 
36

uniform acceptance and reliance on CPS evidence supports the 

trial court’s decision to admit the CPS evidence here.7

C. Prosecutorial misconduct

Next, Lund argues the prosecutor engaged in repeated, 

pervasive misconduct that violated state law and rendered his 

trial fundamentally unfair, denying him his federal right to due 

process. Lund bases these contentions on four areas of alleged 

misconduct by the prosecutor: asking objectionable questions, 

engaging in repeated argumentative questioning, asking Lund to

comment on the testimony of other witnesses, and testifying as a 

witness. He further asserts the pervasive nature of the 

7 Our holdings that the prosecution’s CPS evidence did not 

need to undergo Kelly review and was admissible under Sargon

should not be taken to preclude inquiry, through crossexamination or discovery, into the possible fallibility of the 

software. Lund was still entitled to attack the weight of that 

evidence, which he might have done by, for example, examining 

the source code and pointing out any flaws in its operation. (See, 

e.g., U.S. v. Budziak (9th Cir. 2012) 697 F.3d 1105, 1111–1113

[district court abused its discretion in denying discovery into 

software like CPS]; U.S. v. Hartman (C.D. Cal., Nov. 24, 2015, 

No. SACR 15-00063-JLS) 2015 U.S. Dist. Lexis 197382 at *30–

*41 [allowing discovery into software used to investigate peer-topeer networks, including two components of CPS].) Lund 

initially sought the CPS source code from the prosecution in 

discovery, and the prosecution did not dispute that such evidence 

was relevant. The trial court denied his request because it 

concluded CPS’s creators were not part of the prosecution team 

for the purposes of criminal discovery, but it did so without 

prejudice to Lund seeking such evidence via subpoena. There is 

no indication in the record that Lund sought the source code via 

subpoena. 
37

misconduct was prejudicial under both state and federal 

standards for reversal. We are not persuaded.

Relevant legal principles

“ ‘ “A prosecutor who uses deceptive or reprehensible 

methods to persuade the jury commits misconduct, and such 

actions require reversal under the federal Constitution when they 

infect the trial with such ‘ “unfairness as to make the resulting 

conviction a denial of due process.” ’ ” ’ [Citation.] ‘ “Under state 

law, a prosecutor who uses such methods commits misconduct 

even when those actions do not result in a fundamentally unfair 

trial.” ’ [Citation.] . . . Prosecutorial misconduct can result in 

reversal under state law if there was a ‘reasonable likelihood of a 

more favorable verdict in the absence of the challenged conduct’ 

and under federal law if the misconduct was not ‘harmless 

beyond a reasonable doubt.’ ” (People v. Rivera (2019) 7 Cal.5th 

306, 333–334.) A showing of bad faith is not required to establish 

prosecutorial misconduct; “the term prosecutorial ‘misconduct’ is 

somewhat of a misnomer to the extent that it suggests a 

prosecutor must act with a culpable state of mind. A more apt 

description of the transgression is prosecutorial error.” (People v. 

Hill (1998) 17 Cal.4th 800, 823, fn. 1.) 

“ ‘As a general rule a defendant may not complain on 

appeal of prosecutorial misconduct unless in a timely fashion—

and on the same ground—the defendant made an assignment of 

misconduct and requested that the jury be admonished to 

disregard the impropriety.’ ” (People v. Prieto (2003) 30 Cal.4th 

226, 259.) “ ‘[O]nly if an admonition would not have cured the 
38

harm is the claim of misconduct preserved for review.’ ” (People 

v. Friend (2009) 47 Cal.4th 1, 29.)

Analysis

a. Repeated objectionable questions

We begin with Lund’s argument that the prosecutor 

committed misconduct by repeatedly asking him objectionable 

questions during cross-examination. Lund contends that it is 

misconduct for a prosecutor to purposefully try to elicit 

inadmissible testimony, especially after defense counsel has 

objected or a trial court has already ruled. He claims the 

prosecutor violated this principle by (a) posing five questions that 

had previously been asked and answered, (b) asking several 

questions that infringed on the attorney-client privilege, and (c) 

asking him to discuss other evidence introduced at trial that was 

outside his personal knowledge, even though the trial court 

repeatedly sustained his objections to all of the questions. 

Lund did not raise in the trial court his argument that the 

pattern of the prosecutor’s behavior constituted misconduct. 

However, he did raise the issue of misconduct with respect to the 

questions that he contends intruded on the attorney-client 

privilege, and the trial court sua sponte admonished the 

prosecutor with regard to some of her questions asking Lund 

about other evidence at trial. We therefore conclude the issue 

has been sufficiently preserved for review on appeal. 

The prosecutor’s questions do not rise to the level of 

misconduct. Lund cites cases holding that a prosecutor may 

commit misconduct by intentionally seeking to admit 
39

inadmissible evidence. (People v. Smithey (1999) 20 Cal.4th 936, 

960; People v. Bell (1989) 49 Cal. 3d 502, 532; People v. Johnson

(1978) 77 Cal.App.3d 866, 873–874.) But those cases involved 

situations in which prosecutors tried to introduce evidence that 

was inadmissible in its entirety, particularly when the trial court 

had already so ruled. The principle illustrated by those decisions 

is not on point here, where the prosecutor asked Lund the same 

questions he had already answered or asked him questions 

designed to contrast his testimony with evidence that had 

already been admitted. To be sure, a prosecutor may engage in 

misconduct by repeatedly asking these types of questions, but 

such repetition would have to be far more extensive than the few 

questions Lund highlights. (People v. Armstrong (2019) 6 Cal.5th 

735, 795–796 [hostile, repetitive, and argumentative crossexamination of capital murder defendant was not misconduct].)

Lund’s argument based on the attorney-client privilege is 

unpersuasive, but for a different reason. The prosecutor asked 

Lund whether a computer expert gave Lund any reason to doubt 

Datzman’s testimony, whether Lund called that expert at trial, 

whether Lund would have called the expert if the expert could 

dispute Datzman’s actions, and whether Lund hired the expert 

but decided not to call him. Lund objected to these questions on 

bases other than attorney-client privilege, and the trial court 

sustained the objections though not necessarily for the reasons 

Lund asserted. Lund later argued outside the jury’s presence 

that the questions were misconduct because they intruded on the 

attorney-client privilege. The trial court indicated it had 
40

sustained some of Lund’s objections because of the privilege and 

said that if the issue recurred it would admonish the jury to 

disregard questions to which the court sustained an objection. 

But the prosecutor said she was done with that area of 

questioning, so the issue did not recur. 

Reasonable minds might differ, but the trial court did not 

abuse its discretion in sustaining objections to the prosecutor’s 

questions, since they perhaps could have called for discussions of 

trial strategy. But we find no merit in Lund’s contention that the 

questions constituted misconduct by allowing the jury to infer 

that he did not call the expert because the expert’s testimony 

would not have helped his defense. “[P]rosecutorial comment 

upon a defendant’s failure ‘to introduce material evidence or to 

call logical witnesses’ is not improper.” (People v. Wash (1993) 

6 Cal.4th 215, 263.) Lund points out that there were innocuous, 

irrelevant reasons why he might not have called the expert and 

that it was his counsel’s ultimate decision whether to call the 

expert. This may be true, but it does not negate the prosecutor’s 

right to comment on his failure to call the expert or convert any 

such comment into an intrusion on attorney-client confidences. If 

Lund were correct, then prosecutors would be barred from 

commenting on a defendant’s failure to call any witness, which 

would give defendants an unfair advantage at trial. As the trial 

court indicated, the prosecutor should have waited to make such 

commentary in her closing argument rather than introducing the 

point through her questioning. But because the failure to call a 

defense expert was a proper subject for prosecutorial comment, 
41

the improper introduction of the concept in Lund’s crossexamination was not prejudicial misconduct.

b. Argumentative questioning

Lund’s second misconduct argument is more accurately 

characterized as a subset of his first. Lund contends that the 

prosecutor engaged in misconduct by continuing to ask 

argumentative questions even though the trial court repeatedly 

sustained his objections. “An argumentative question is a speech 

to the jury masquerading as a question. The questioner is not 

seeking to elicit relevant testimony. Often it is apparent that the 

questioner does not even expect an answer. The question may, 

indeed, be unanswerable.” (People v. Chatman (2006) 38 Cal.4th 

344, 384 (Chatman).)

Lund directs us to eight questions and comments he claims 

are argumentative. Lund did not object to all of these questions, 

did not always raise the issue of argumentative questioning when 

he did object, and never raised the issue of misconduct or asked 

the trial court to admonish the prosecutor to refrain from such 

questions. However, the trial court stopped the questions even 

when Lund did not object and twice admonished the prosecutor 

sua sponte. We will therefore proceed to examine Lund’s 

argument on the merits.

First, after the trial court had sustained his objection to a 

question and no question was pending, Lund interjected that he 

couldn’t answer the prosecutor’s questions because she would not 

let him read the exhibits. The prosecutor responded, “Do you 

think you just get to talk when you want to?” Lund did not 
42

object, but the trial court sua sponte admonished the prosecutor,

“Don’t do that.” 

Second, the prosecutor asked Lund whether he was aware 

she had a rebuttal witness coming to contradict his testimony. 

Lund objected that the question was argumentative, and the trial 

court sustained the objection, on the basis that the question 

called for speculation. 

Third, after Lund stated that he believed it was unsafe to 

have computers in patrol cars, despite the CHP policy mandating 

such computers, the prosecutor asked, “So you know better than 

all the people that decided that these should go in the CHP patrol 

cars?” The trial court sustained Lund’s objection that the 

question was argumentative. 

Fourth, shortly after asking Lund about a text message he 

sent in which he described himself as a “neurosurgeon” in 

comparison to his fellow CHP officers, whom he described as 

“idiots,” the prosecutor asked Lund, concerning a CHP policy he 

said he was not familiar with, “So you’re the neurosurgeon but 

you never read the policy?” The court sustained the objection 

that the question was argumentative. 

Fifth, after Lund testified that other officers used his desk 

when he was not in the office, the prosecutor asked, apparently 

referring to Lund’s lack of witnesses corroborating his claims, 

“Let me guess, you have a witness coming in to say that?” The 

trial court sustained Lund’s objection that the question was 

argumentative. 
43

Sixth, when Lund told the prosecutor that the pornography 

in his locker was not his but he did not know who put it there, 

the prosecutor rejoined, “Okay. You have no answers?” The trial 

court sua sponte ruled that the question was argumentative. 

Seventh, when Lund testified that he could not find a 

witness to corroborate his claim that another sergeant had a key 

to his locker because “[i]t’s been five years ago,” the prosecutor 

responded, “But it’s not been five years since day one.” The trial 

court sua sponte admonished the prosecutor, “We don’t need to 

keep repeating that.” 

Finally, after Lund admitted that he had been disciplined 

earlier in his career for viewing pornography on his work 

computer, the prosecutor asked how many other CHP officers had 

gotten in trouble for that. Lund objected that the question was 

argumentative, and the trial court sustained the objection on the 

grounds of relevance. The prosecutor then asked whether Lund 

had a “golden” career, referring to a text message in which he had 

said that. The trial court sustained Lund’s objection that the 

question had been asked and answered. 

Lund contends these questions were argumentative and 

demonstrated the prosecutor’s attempt to agitate and belittle 

Lund to make the jury not like him. Assuming all of the 

questions were argumentative, only the first question, in which 

the prosecutor asked whether Lund thought he could talk 

whenever he wanted, constituted misconduct. That question was 

not designed to elicit information, or even make an argument to 

the jury cloaked as a question, but rather aimed to belittle Lund. 
44

However, on its own this single instance of misconduct is de 

minimis. (People v. Collins (2010) 49 Cal.4th 175, 208.) None of 

the other questions, singly or together, rises to the level of 

“ ‘deceptive or reprehensible methods’ ” that the doctrine of 

prosecutorial misconduct prohibits. (People v. Rivera, supra, 

7 Cal.5th at p. 333; People v. Armstrong, supra, 6 Cal.5th at 

p. 796 [“Effective and legitimate cross-examination may involve 

assertive and even harsh questioning”].) Despite the questions’ 

sarcastic or biting tone, Lund “identifies no line of questioning, 

and the transcript reveals none, that crossed over any boundaries 

of fair play or that would have led the jury to decide this case on 

anything other than the facts and the law.” (Armstrong, at p. 96.) 

Even if these questions did constitute misconduct, we are 

satisfied under any standard of prejudice that they did not affect 

the outcome of the trial. The trial court sustained Lund’s 

objections, dispelling any prejudice. (People v. Fuiava (2012) 

53 Cal.4th 622, 687.) Additionally, as discussed above, the 

evidence connecting Lund to the devices containing child 

pornography was very strong, and the prosecution buttressed it 

with the striking correspondence between the CPS data and 

Lund’s schedule and movements.

c. Asking whether witnesses were lying

Lund further contends the prosecutor erred by asking him 

whether other witnesses were lying. Lund objected to only one of 

the first questions in the prosecutor’s series of questions on this 

topic, on the grounds that it called for speculation and was 

improper. The trial court overruled the objection. We assume 
45

the objection of impropriety was equivalent to a request for an 

admonition. Because the court overruled the objection, we 

conclude any objections to the rest of the questions would have 

been futile. We will therefore examine Lund’s argument on the 

merits. (People v. Hill, supra, 17 Cal.4th at p. 820.)

Lund relies on People v. Zambrano (2004) 124 Cal.App.4th 

228, 242, which held that it is misconduct to ask a defendant if 

other witnesses are lying where the question serves no 

evidentiary purpose and serves only to berate the defendant and 

inflame the passions of the jury.8 But as Chatman, supra, 

38 Cal.4th at pages 377–384, later made clear, such questions 

can serve an evidentiary purpose. Chatman explained that a 

“party who testifies to a set of facts contrary to the testimony of 

others may be asked to clarify what his position is and give, if he 

is able, a reason for the jury to accept his testimony as more 

reliable.” (Id. at p. 382.) The court noted that Zambrano had 

held a prosecutor committed misconduct by asking the defendant 

whether other witnesses were lying, when the defendant did not 

know the other witnesses, could not testify about their bias, 

interest, and motive to be untruthful, and had already 

contradicted their testimony with his own. (Id. at p. 381.) In 

Chatman, by contrast, the prosecutor’s questions were proper, 

because the defendant “was not asked to opine on whether other 

8 Lund also cites U.S. v. Sanchez (9th Cir. 1999) 176 F.3d 

1214, 1219, which held that asking whether other witnesses are 

lying is improper because witness credibility is a question for the 

jury. Chatman, supra, 38 Cal.4th at pages 380, 382, rejected this 

principle.
46

witnesses should be believed” but instead “asked to clarify his 

own position and whether he had any information about whether 

other witnesses had a bias, interest, or motive to be untruthful.” 

(Id. at p. 383.) The defendant had relevant personal knowledge 

and knew the other witnesses, who were his friends or relatives. 

(Ibid.)

The prosecutor’s questions here fall squarely within the 

ambit of Chatman. The prosecutor did not ask Lund to opine 

generally on whether the jury should believe the other witnesses, 

but instead asked more specifically whether he had any reason to 

believe the other witnesses would make up lies against him. 

Because Lund took the stand and claimed the witnesses against 

him were wrong in a way that could only result from deception or 

bias, it was fair for the prosecution to explore the basis for Lund’s 

belief. This is especially true because Lund worked with many of 

the witnesses against him and so might have been able to offer 

some specific testimony regarding any biases or improper 

motives. Accordingly, the prosecutor’s questions about other 

witnesses do not constitute misconduct.

d. Prosecutor testifying as a witness

Lund argues the prosecutor committed misconduct by 

testifying as a witness about Duplissey’s correction of his report. 

Lund objected to only two questions in the exchange he cites; he 

objected that the questions called for hearsay or were leading and 

called for speculation. Because Lund neither objected to the 

prosecutor’s line of questioning on the ground he now raises nor 

requested an admonition, he has forfeited this argument. (People 
47

v. Prieto, supra, 30 Cal.4th at p. 259.) Even were we to consider 

the argument on the merits, we would reject it because the 

prosecutor’s questions of Duplissey about interactions she had 

with him are not equivalent to her appearing as a witness. 

D. Child pornography videos

Lund’s final argument focuses on the child pornography 

videos the prosecution played for the jury. Lund asserts the 

prosecution played 50 video segments and argues the prejudicial 

effect of this evidence substantially outweighed its probative 

value under Evidence Code section 352. He also asserts the 

court’s decision to admit the evidence without reviewing it in 

advance was arbitrary. He further argues the admission of this 

evidence deprived him of a fair trial and violated his right to due 

process. 

“Under Evidence Code section 352, 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. ‘Evidence is substantially 

more prejudicial than probative [citation] if, broadly stated, it 

poses an intolerable “risk to the fairness of the proceedings or the 

reliability of the outcome.” ’ ” (People v. Riggs (2008) 44 Cal.4th 

248, 290.) “In applying this statute we evaluate the ‘risk of 

“undue” prejudice, that is, “ ‘evidence which uniquely tends to 

evoke an emotional bias against the defendant as an individual 

and which has very little effect on the issues,’ ” not the prejudice 

“that naturally flows from relevant, highly probative evidence.” ’ ” 

(People v. Salcido (2008) 44 Cal.4th 93, 148.) We review for 
48

abuse of discretion a trial court’s decision based on Evidence 

Code section 352. (Riggs, at p. 290.)

Lund’s assertion that the prosecutor played 50 video 

segments is misleading. In response to Lund’s motion in limine 

to exclude the child pornography images and videos, the trial 

court limited the prosecutor to playing five files from each of the 

six devices. The prosecutor played even fewer than that, 

displaying only 15 files to the jury. The prosecutor also skipped 

ahead quickly in the video files she played for the jury rather 

than playing entire files. It appears from the record that many 

video segments were very brief, sometimes a matter of seconds. 

Lund’s approach of counting multiple portions of a single video 

file as separate video segments would penalize the prosecutor for 

her apparent attempt to minimize the time spent displaying child 

pornography. We therefore reject Lund’s attempt to inflate the 

number of videos at issue and will analyze Lund’s arguments 

using the number of 15 child pornography files.

Lund first challenges the files as lacking probative value. 

He points out that he did not dispute that the files constituted 

child pornography, merely his knowing possession of them, so he 

contends the child pornography itself was not probative of his 

guilt. Lund recognizes the prosecution had to prove that he 

possessed child pornography, but he maintains the prosecution 

could have used Datzman’s testimony about the videos for this 

purpose, so the videos were cumulative. We reject these 

arguments because the law is clear that “the prosecution was not 

required to accept defense concessions as a sanitized alternative 
49

to the full presentation of its case.” (People v. Zambrano (2007) 

41 Cal.4th 1082, 1149, disapproved on other grounds by People v. 

Doolin (2009) 45 Cal.4th 390.) This is especially true here, where 

the videos were not merely circumstantial evidence like a crime 

scene in a murder case, but rather constituted direct evidence of 

one of the elements of the possession of child pornography charge 

against Lund. (Pen. Code., § 311.11, subds. (a), (c)(1); People v. 

Holford (2012) 203 Cal.App.4th 155, 171 (Holford).) Lund’s 

contention that the videos were unfairly prejudicial by their very 

nature therefore misses the mark. The relevant question is not 

whether the prosecution was allowed to show child pornography 

to the jury, but how much.

On that score, we conclude the trial court did not abuse its 

discretion in allowing the prosecution to play portions of a few 

files from each of the electronic devices found to contain child 

pornography. Holford, supra, 203 Cal.App.4th 155 is instructive. 

There, the defendant was charged with possessing a single 25-

minute child pornography video. (Id. at pp. 158–159.) Without 

watching the video first, the trial court ruled the entire video was 

admissible, and the prosecution played all 25 minutes of it for the 

jury. (Id. at pp. 165–166.) On appeal, the court found the video 

was highly probative because it proved one element of the crime 

and its length and the obviously young age of the minor in it 

created an inference that the defendant knowingly possessed it. 

(Id. at pp. 171–173 & fn. 8.) The court further found that while 

the video was disturbing, “the trial court’s determination that the 

probative value of establishing defendant’s knowledge was not 
50

‘substantially’ outweighed by a ‘substantial danger’ of prejudice 

was not arbitrary, capricious nor patently absurd.” (Id. at 

p. 174.) The court stated that while it did not condone the 

practice of ruling on the admissibility of the video without 

watching it first, the trial court was entitled to rely on an offer of 

proof and it apparently did so by accepting the parties’ agreement 

that the video was graphic. (Id. at pp. 174–175.) The court also 

noted that the trial court’s ruling would have been the same 

regardless since it reaffirmed its ruling after watching the video. 

(Id. at p. 175.)

In comparison to Holford, where there was a single video at 

issue and the prosecution played all of it, the prosecution’s 

approach here appears to strike a reasonable balance between 

the potential undue prejudice and the prosecution’s desire to 

present a compelling case. The prosecutor told the court at the 

hearing before Lund’s second trial on Lund’s motion to exclude 

the child pornography that she would follow the same practice 

that she did at the first, which entailed playing brief portions 

from up to the first five videos from each device. The trial court 

estimated the prosecutor spent about 8 to 10 minutes in total 

displaying photos or videos to the jury in the first trial. The 

record does not indicate how much time elapsed during the 

playing of the videos at the second trial, but from the court 

reporter’s transcription of the prosecutor’s remarks as she was 

playing the files, this estimate seems fair. Considering the 

electronic devices contained thousands of images and videos, 

eight to ten minutes does not seem excessive, especially because 
51

that total amount of time was broken up into smaller chunks of 

time for each device.

Lund contends the material issue in Holford was whether 

the defendant knew the video was child pornography, and 

contrasts that with his defense, which turned only on how the 

electronic devices came to be found in his locker, desk, and car. 

He concludes the videos themselves carried little relevance. But 

as we have noted, the nature of the videos and images as child 

pornography was still an element of the prosecution’s case, and 

the prosecution was not required to sanitize its case before the 

jury. The question is one of balance, and Lund does not offer any 

argument for how much child pornography the prosecution 

should have been allowed to show, aside from saying that the 

amount played at trial was too much.

Lund points out that Holford suggested its balancing 

analysis might have come out differently had the defendant been 

alleged to possess multiple pieces of pornography, like Lund was. 

(Holford, supra, 203 Cal.App.4th at p. 171, fn. 7.) Holford stated, 

“[I]n a case involving multiple pieces of child pornography, the 

probative value of admitting the entirety of a defendant’s 

collection may not be any higher than admitting only a few pieces 

unless there are other circumstances. Moreover, depending on 

the depictions in the collection and other circumstances in the 

case, the danger of prejudice resulting from the admission of an 

entire collection could substantially outweigh the probative 

value, particularly since admitting the extra pieces could have 
52

very little effect on the issues given the charging rules for 

possession of child pornography in California.” (Ibid.) 

These statements are obviously dicta, but they also do not 

reflect the current state of the law. When Holford was decided in 

2012, as the court stated, the possession of multiple pieces of 

child pornography was chargeable as only a single criminal 

offense. (Holford, supra, 203 Cal.App.4th at p. 171, fn. 7.) In 

2013, the Legislature amended Penal Code section 311.11 to 

create the separate offense of possession of over 600 child 

pornography images, more than 10 of which involve a minor 

under the age of 12, with one video equal to 50 images. 

(Stats. 2013, ch. 777, § 3.) Now, when a prosecutor is trying to 

prove such an offense, the display of multiple child pornography 

images or videos has significant probative value to show a 

defendant possessed 600 images or 12 videos. Even so, Evidence 

Code section 352 still plays a role in such cases. The statute does 

not set any minimum length for a video to qualify as 50 images, 

so the new offense does not mean a prosecutor can necessarily 

play the entirety of 12 videos like the 25-minute video at issue in 

Holford. Conversely, a trial court does not necessarily abuse its 

discretion in allowing a prosecutor to play more than 12 videos, 

like the prosecutor here, even when the nature of the videos as 

child pornography is not disputed. The balancing of probative 

value against the risk of undue prejudice under Evidence Code 

section 352 remans an issue for the trial court’s sound discretion. 

And under the circumstances here, where the prosecutor 

displayed one image and portions of 15 videos for what appears to 
53

be a total of approximately eight to ten minutes, we cannot find 

that the court abused its discretion in striking the balance as it 

did. 

Lund finally argues the trial court abdicated its role as the 

gatekeeper of evidence by not previewing any of the videos that 

the prosecution played for the jury, just like the trial court in 

Holford, supra, 203 Cal.App.4th at pages 174–175. He contends 

the trial court’s admission of the videos could only have been 

arbitrary because the prosecution did not even make an offer of 

proof as to the number of videos, how long the videos were, or the 

file names of the videos. This argument misconstrues the record. 

As noted above, the prosecution told the trial court at a pretrial 

hearing before the second trial that she would limit herself to the 

first five files from each device, just as she had in the first trial. 

The record shows the prosecutor did just that. The same judge 

presided over both trials, and the trials took place only a few 

months apart, so the trial court was well aware of the nature of 

the child pornography before the prosecutor played it. Lund 

quibbles over whether this procedure technically qualified as an 

offer of proof as to the content of the files, but it amounts to the 

same thing. The trial court specifically noted that the 

prosecutor’s approach in the first trial was not excessive and she 

ultimately displayed fewer files to the jury than the trial court 

had authorized. The second trial was similar, with the 

prosecution displaying 15 videos and one image to the jury, not 

the full 30 files authorized by the trial court’s ruling. Because 

the trial court had already seen the videos that would be played, 
54

its decision was “an informed one and not ‘ “a shot in the dark.” ’ ” 

(Id. at p. 174.) The trial court did not abdicate its role.9

III. DISPOSITION

The judgment is affirmed.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

People v. Lund (A157205)

9 The only error that Lund has shown in his trial was the 

de minimis misconduct of one improper statement by the 

prosecutor. As a result, we need not consider Lund’s contention 

that the cumulative effects of multiple errors in his trial made it 

fundamentally unfair in violation of due process.
55

Trial Court: Solano County Superior Court

Trial Judge: Hon. Daniel J. Healy

Counsel: 

Law Offices of Beles & Beles, Robert J. Beles, Joseph L.Ryan, for 

Defendant and Appellant.

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

Assistant Attorney General, Julie L. Garland, Assistant Attorney 

General, A. Natasha Cortina, Annie Featherman Fraser, Deputy 

Attorneys General, for Plaintiff and Respondent.