1

Filed 5/13/14 P. v. Leith CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TRAVIS WADE LEITH,

Defendant and Appellant.

C068237

(Super. Ct. No. 09F06020)

Defendant Travis Wade Leith claims insufficient evidence supports his 

convictions of possession of child pornography (Pen. Code, § 311.11, subd. (a)),1sexual 

exploitation of a child (§ 311.3, subd. (a)), and unlawful use of a concealed camera (§

647, subd. (j)(3)(A)). He also asserts the trial court erred when it did not on its own 

 

1 Undesignated section references are to the Penal Code.
2

motion take permissive judicial notice of a civil complaint filed by the victim, 

purportedly limiting his ability to impeach the victim. In addition, he contends the court 

abused its discretion when it ordered him to submit to GPS electronic monitoring for the 

term of his probation.

We reject defendant’s contentions and affirm the judgment.

FACTS

The victim, B.R., lived with her mother and defendant from when she was seven

years old until she was about 15. The mother and defendant were in a relationship. 

Defendant was a father figure to B.R. She looked up to him, called him “dad,” and loved 

him. The family lived in a home on Bristol Plaza Way (first home). 

When B.R. was approximately 15 years old, her mother and defendant ended their 

relationship. B.R. and her mother moved into an apartment, but about six months later, 

her mother asked her to leave because she could not provide for her. Having nowhere 

else to go, B.R. moved back in with defendant. She has no contact with her mother. 

Defendant and B.R. had separate bedrooms and bathrooms at the first home. 

Defendant provided her with the necessities of life as she continued high school. During 

this time, B.R. began dating Dustin T., forming a relationship that continued through 

trial. 

In fall 2008, during B.R.’s senior year in high school and prior to her turning 18, 

defendant and B.R. moved to a residence on Kapalua Lane (second home). Defendant’s 

girlfriend, Katrina Tougeron, moved in with them. B.R. had her own bedroom and 

bathroom in the second home. She celebrated her 18th birthday there in October of 2008. 

B.R. had access to defendant’s computer, which was located in a den or home 

office. She created a password-protected profile on that computer. She never gave her 

password to defendant. He never asked her for her password, and she never told anyone 

her password. Defendant had his own password-protected profile, and B.R. did not have 

access to his profile or know his password. 
3

On May 23, 2009, B.R. was using defendant’s computer to edit her senior ball 

photographs. At the time, defendant and Tougeron were preparing dinner. When B.R. 

clicked on one of the programs, she saw pictures of her as if they had been taken from the 

ceiling in her bedroom. At least one showed her alone; another showed her and True, 

standing. B.R. had never seen these pictures before, and she felt horrified at seeing them. 

She called Dustin T. and asked him to come over and view them. While waiting 

for him to arrive, B.R. started dinner with defendant and Tougeron. She did not tell them 

about the pictures. When Dustin T. arrived, she and he went into the office and viewed 

the pictures. Dustin T. was shocked. They decided to go back to Dustin T.’s house to 

talk and figure out what was happening. She told defendant she was leaving to go to 

Dustin T.’s house. She gave him no indication she had found the pictures. 

Dustin T.’s friend, Tim, was at Dustin T.’s house. After speaking about the 

matter, the three decided to go back to defendant’s house and ask defendant if he knew 

about the pictures. While traveling back, B.R. called defendant and asked him about the 

pictures. After she told him she had found pictures from her room on the computer, there 

“was a pause for a while.” Then defendant asked where the pictures were. She told him 

they were on a program on the computer. 

When the trio arrived at defendant’s home, defendant was sitting on the couch. 

B.R. showed Dustin T. and Tim the pictures, and then defendant came into the room and 

looked at them. When asked what happened next, B.R. said, “[It’s] a blur.” Sometime 

later that evening after B.R. had shown defendant the pictures, B.R. saw defendant in the 

office alone looking at different pictures on the computer. The first picture she saw him 

viewing appeared to be of a person nude in a shower. B.R. was shocked, and she looked 

away in disgust. Then she saw multiple pictures on the screen at once. She asked him 

what he was doing. Defendant said he was trying to find the pictures. He seemed 

frustrated and flustered. 
4

Right after coming home, B.R. went into her bedroom and noticed a small hole 

next to the smoke detector on the room’s ceiling. She also saw some pink insulation on 

the floor. B.R. commented on the smoke detector to defendant, and he went into her 

bedroom and started to unscrew it. He also went into her bathroom and began 

unscrewing the vent in that room, apparently to see if there was a camera inside. 

At some point, Tim telephoned the police. Upon hearing the police were coming, 

defendant appeared “panicky.” After the police arrived, B.R. went to Dustin T.’s house, 

and she never returned to defendant’s house. 

Elk Grove police officers responded to defendant’s home around 8:48 p.m. the 

evening of May 23, 2009. Officer David Monti viewed defendant’s computer and saw 

three thumbnail images of a bedroom that looked as if they had been taken by closedcircuit TV from a ceiling. Next, defendant showed Officer Monti B.R.’s bedroom. 

Officer Monti recognized the bed in the room as the same bed he saw in the thumbnail 

pictures on defendant’s computer. 

Officer Monti saw a grate from a ceiling air vent and smoke detector parts on the 

bed. There was a hole in the smoke detector that appeared to have been drilled. Using a 

ladder, he looked at the electrical box in the ceiling where the smoke detector would have 

been. There was a small gap between the drywall and the electrical box through which 

he could see into the attic. Shining his flashlight through the gap, he saw the male 

portions of audio/video cables behind the drywall. He described the cables as a black 

wire with yellow, red, and white connectors. The cables at that end were not connected 

to anything. They did not appear to be wiring that was normally used in a house. 

Officer Monti went into the attic. He found the black wire he had seen from B.R’s 

bedroom, and he followed it to the other end of the house. There, it was plugged into an 

adapter box. Wires from the adapter box were plugged into a surge protector. Other blue 

wires and cables that looked like phone jacks were also attached to the adapter box. The 

cables from the adapter box went into a circuit breaker or power box that was located in 
5

the master bedroom where defendant and Tougeron slept. Officer Monti did not locate a 

camera in the attic. 

Elk Grove Police Detective Kevin Papineau, an expert in computer forensics, 

examined defendant’s computer on June 18, 2009. The computer had two hard drives; a 

lower drive and an upper drive. 

On the lower drive, in defendant’s profile, Detective Papineau found a résumé for 

defendant. The resume stated defendant has a bachelor’s degree in computer science 

from Purdue University and a master’s degree in software engineering from California 

State University, Sacramento. 

Still on the lower drive, and in a folder labeled “hidden,” Detective Papineau 

found 25 video files. All of them had been deleted, and all had been last accessed on 

May 23, 2009, between 8:00 p.m. and 8:17 p.m. Although all of the videos had been 

deleted, the data remained for nine of them, and he was able to view those nine. All nine 

were shown to the jury and identified by B.R. Three of them depicted B.R. masturbating 

in the first home, in her bedroom and bathroom. Two showed her partially nude and 

dressing in her first home bedroom. B.R. was under the age of 18 in these videos, and 

she was unaware they had been made. 

Four of the videos depicted B.R. and Dustin T. having sex in B.R.’s second home

bedroom. B.R. had no idea these videos were being made. 

In the computer’s recycler folder (also known as the recycle bin), Detective 

Papineau found approximately 2,000 images that were consistent with the views from the 

camera in the videos. They had been deleted, or moved to the recycler folder, on May 

23, 2009, between 7:59 p.m. and 8:45 p.m. The images were sequential, such that if 

played with the appropriate software, they would create a movie. 

Detective Papineau found other photos that were deleted on May 23, 2009, 

between 7:59 p.m. and 8:45 p.m. These photos were shown to the jury and identified by 

B.R. A series of photographs created in 2006 depicted B.R. masturbating with a vibrator 
6

in her first home bedroom. She would have been 15 or 16 years old at the time.2 B.R. 

was not aware a camera was taking these photographs. 

A series of photos created in 2007 depicted B.R. “[m]aking out, messing around” 

and trying to have sex with a former boyfriend in her first home bedroom. B.R. was 15 

or 16 when these photos were taken. 

Two series’ of photos found in the recycler folder and created on two different 

occasions in 2009 depicted B.R. and Dustin T. having sex in her second home bedroom. 

She was 18 years old at the time, and she had no idea these photos were being taken. 

Detective Papineau also viewed the media player art cache under defendant’s 

profile. This is a temporary storage which the media player program uses to recall items 

that were played on it. In this cache, he found photographs that had been created as files 

between January 13, 2007, and September 5, 2007. B.R. identified these photos as 

depicting her nude, and in some instances masturbating, in the first home’s bathroom and 

bedroom. B.R. did not have any idea these photos were taken, and she did not take them 

herself or install a hidden camera in her bedroom or the bathroom. She was under the age 

of 18 when these photos were taken. 

On the upper drive of defendant’s computer, Detective Papineau found a zip file 

that contained images that were consistent with having been taken from a covert camera. 

The file was labeled “hidden one dot zip.” This file was created on May 23, 2009, at 

8:07 p.m. It contained a total of 2,158 files. Some of the folders and images in this file 

were duplicates of others he had seen in the recycler and the videos folders. Others were 

shown to the jury and identified by B.R. They included four series’ of photos apparently 

taken on four different days in 2009 that depicted B.R. having sex with Dustin T. in her 

second home bedroom. B.R. had no idea these photos were taken of her. 

 

2 On cross-examination, B.R. testified defendant purchased a vibrator for her when 

she was 15 years old. 
7

Detective Papineau found other photos in the zip drive that were not contained in a 

specific subfolder. Some of them appeared to have been taken from a covert overhead 

camera. B.R. identified these photos, contained in four series’, as photos of herself nude 

in both the first home and the second home. B.R. did not know these photos were taken 

of her. 

The remaining photos on the zip drive were not taken from an overhead camera. 

Rather, most of these photos were taken by B.R. of herself in various states of dress. 

B.R. liked to take photos of herself. She never shared these photos with anyone nor 

posted them to a social network site or elsewhere on the Internet. She stored these photos 

on her camera and then uploaded them to her password-protected profile on defendant’s 

computer. She did not know how these photos ended up in defendant’s profile. 

Detective Papineau had also located these photos in the recycler folder. On crossexamination, B.R. stated she had deleted some of her own photographs at about 5:30 p.m. 

or 6:00 p.m. on the evening of May 23, 2009. 

B.R. testified she had only a basic knowledge of computers and computer 

programs, which she learned from one computer class in high school. She was unfamiliar 

with electrical wiring and audio/video cables. She also did not know how to attach a 

camera to a ceiling or to transfer images from a surveillance camera to a computer. She 

never stored any data under defendant’s profile on his computer. 

On cross-examination, B.R. testified that a couple of weeks after leaving 

defendant’s house, she met with a civil attorney, Kenneth Shepard, but at the time of trial, 

she did not know whether a civil action had been filed. She described to Shepard what 

had occurred prior to and on May 23, 2009. The lawsuit alleged defendant had recorded 

and photographed B.R. in the residence, and B.R. was seeking damages. She stated she, 

Dustin T.’s mother, and the prosecutor spoke with Shepard by phone outside the 

courtroom during trial, and that she heard someone mention the suit was seeking 
8

$1,000,000 in damages, but she never spoke directly with Shepard about the amount of 

damages. 

Defense

Defendant did not testify. His girlfriend, Katrina Tougeron, testified on his behalf. 

At the time she moved in with defendant into the second home, he worked outside the 

home as a programmer for a firm in Rancho Cordova. Both defendant and Tougeron 

arrived home from work about 5:30 p.m. each day. Defendant routinely spent evening 

hours assisting B.R. with homework or her dance lessons. After helping B.R. with her 

homework, defendant and Tougeron would work out or watch movies. Weekends also 

centered on B.R.’s schedule. Defendant would not be at the computer for hours at a time 

on weekends. Any time he spent at the computer at home was for his work. 

The night the police came to the home, May 23, 2009, had started as an ordinary 

night. Tougeron prepared dinner for defendant and B.R. Dustin T. came over, and he 

and B.R. sat in the computer room for about 20 minutes. B.R. was not upset and did not 

appear to be angry. Then they left the house for an hour or so. During that time, 

defendant and Tougeron watched basketball on TV. Also during that time, B.R. called 

defendant two or three times. After the calls, defendant seemed flustered and confused, 

and he did not understand what B.R. had been discussing with him. But after each call, 

he continued to watch TV with Tougeron. He did not get up at any time. 

Then B.R., Dustin T., and Dustin T.’s friend, Tim, came into the house, went 

straight into B.R.’s room, and closed the door. They stayed there for about 10 to 15 

minutes. They came out, and Tougeron met them in the hall. B.R. was “freaked out, just 

shooken up [sic],” and she started questioning Tougeron and snapping at her. She asked 

if defendant had been in her room. Tougeron said he had not and had been sitting with 

her on the couch. B.R. brought Tougeron into her bedroom. She saw insulation on the 

floor and a hole in the smoke detector on the ceiling. The presence of insulation on the 

floor seemed unusual, and Tougeron asked B.R. about it. B.R. continued asking if 
9

defendant had been in her room. She accused defendant of having a camera in the ceiling 

and taking pictures of her. She brought Tougeron to the computer. At about this time, 

defendant went into the garage to retrieve a ladder to see what was going on. 

B.R. brought up a photograph on defendant’s computer and told Tougeron to look 

at it. Tougeron started giggling because the image was about one-inch in diameter and 

she could not tell what it was. Dustin T. yelled at Tougeron that someone had been 

taking pictures and he was going to sue defendant. Tougeron called him an “ignorant 

bastard.” Then they went into the bedroom to see if defendant had found a camera. 

Tougeron testified there was not a time she could recall seeing defendant by 

himself at the computer that evening from the time B.R. first called him to the time the 

police arrived. 

On cross-examination, Tougeron stated defendant was a computer engineer. He 

used his home computer for hours and hours at a time for work if the project required it. 

She stated defendant is experienced with installing lighting. He also set up the TV in 

their home, including connecting all of the wires, such as the DVD player to the TV. 

Tougeron herself has no computer expertise and is not familiar with video editing or any 

audio/video technology. 

Tougeron also stated defendant owns two or three cameras. He transfers photos 

from his cameras to his computer, and he posts the photos in a shared folder for anyone to 

see. Defendant never let Tougeron use his computer through his profile nor did he share 

with her his password to access his profile. 

DISCUSSION

I

Sufficiency of the Evidence

Defendant contends insufficient evidence supports his convictions of the charged 

offenses: possession of child pornography, sexual exploitation of a child, and unlawful 

use of a concealed camera. We disagree.
10

Our standard of review on a claim of insufficient evidence is well known. “ ‘To 

determine the sufficiency of the evidence to support a conviction, an appellate court 

reviews the entire record in the light most favorable to the prosecution to determine 

whether it contains evidence that is reasonable, credible, and of solid value, from which a 

rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ 

[Citations.]” (People v. Tafoya (2007) 42 Cal.4th 147, 170.) 

The standard is the same where the prosecution relies primarily on circumstantial 

evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) “ ‘Although it is the duty of the 

jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two 

[reasonable] interpretations, one of which suggests guilt and the other innocence 

[citations], it is the jury, not the appellate court which must be convinced of the 

defendant's guilt beyond a reasonable doubt. “ ‘If the circumstances reasonably justify 

the trier of fact’s findings, the opinion of the reviewing court that the circumstances 

might also reasonably be reconciled with a contrary finding does not warrant a reversal of 

the judgment.’ ” [Citations.]’ [Citation.]” (People v. Stanley (1995) 10 Cal.4th 764, 792-

793.)

A. Possession of child pornography and sexual exploitation of a child

To convict defendant of possession of child pornography (§ 311.11, subd. (a)), the

jury had to find defendant (1) knowingly possessed or controlled any matter or image that 

contained or incorporated a film, the production of which involved a person under the age 

of 18 years, and (2) that he knew the matter in his possession depicted a person under the 

age of 18 years personally engaging in sexual conduct.3 

 

3 At the time defendant committed the offenses, section 311.11, subdivision (a) 

read: “Every person who knowingly possesses or controls any matter, representation of 

information, data, or image, including, but not limited to, any film, filmstrip, photograph, 

negative, slide, photocopy, videotape, video laser disc, computer hardware, computer 

software, computer floppy disc, data storage media, CD-ROM, or computer-generated 

equipment or any other computer-generated image that contains or incorporates in any 
11

Similarly, to convict defendant of sexual exploitation of a child (§ 311.3, subd. 

(a)), the jury had to find defendant knowingly developed, duplicated, printed or 

exchanged any image, such as a photograph or a computer-generated image, that 

contained any film or filmstrip that depicted a person under the age of 18 years engaged 

in an act of sexual conduct.4

The evidence sufficiently establishes defendant knowingly possessed and 

developed matter or images that contained a film he knew to feature B.R., a person under 

the age of 18, engaged in sexual conduct. Defendant knowingly possessed on his 

computer at least three videos showing B.R. masturbating while in her first home 

bedroom. Defendant also knew B.R. was under 18 years of age at the time of those 

videos, as he was acting, for all intents and purposes, as her father, and knew she did not 

turn 18 until after they moved to the second home. Defendant was the only person in the 

home with knowledge of computers, cameras, and wiring to set up a system to 

photograph and record B.R. in secret. The videos were kept in defendant’s computer 

profile, to which neither B.R. nor Tougeron had access.

 

manner, any film or filmstrip, the production of which involves the use of a person under 

the age of 18 years, knowing that the matter depicts a person under the age of 18 years 

personally engaging in or simulating sexual conduct, as defined in subdivision (d) of 

Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state 

prison, or a county jail for up to one year, or by a fine not exceeding two thousand five 

hundred dollars ($2,500), or by both the fine and imprisonment.” (Stats. 2007, ch. 579, § 

38.) 

4 Section 311.3, subdivision (a) reads: “A person is guilty of sexual exploitation of 

a child if he or she knowingly develops, duplicates, prints, or exchanges any 

representation of information, data, or image, including, but not limited to, any film, 

filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer 

hardware, computer software, computer floppy disc, data storage media, CD-ROM, or 

computer-generated equipment or any other computer-generated image that contains or 

incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 

years engaged in an act of sexual conduct.”
12

Defendant raises a number of interpretations of the evidence to argue the jury 

could have concluded he was neither responsible for, nor aware of, the videos on his 

computer. He allegedly worked too many hours outside the home to have time to edit the 

videos, and someone with his computer expertise would not have attempted to delete the 

videos by moving them to the recycler folder, knowing they could be found there. He 

also asserts there was opportunity and motive for Dustin T. and B.R. to plant the videos 

in his computer and seek to recover damages in the civil action. None of his theories, 

however, refute the fact that no one who testified had his computer skills or could access 

defendant’s profile on his computer except him, and that was where the videos were 

found. Suggesting Dustin T. planted the videos is mere speculation. 

Even assuming everything defendant asserts is true and was heard by the jury, his 

claim of insufficient evidence would fail because there was contradictory evidence. It is 

the jury’s call in such a case because it must determine whom to believe and what is true; 

that is, determine the facts. “It is an elementary, but often overlooked principle of law, 

that when a verdict is attacked as being unsupported, the power of the appellate court 

begins and ends with a determination as to whether there is any substantial evidence, 

contradicted or uncontradicted, which will support the conclusion reached by the jury. 

When two or more inferences can be reasonably deduced from the facts, the reviewing 

court is without power to substitute its deductions for those of the trial court. 

[Citations.]” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Sufficient 

evidence supports defendant’s convictions of possessing child pornography and sexually 

exploiting a minor.

B. Unlawful use of a concealed camera

To convict defendant of unlawful use of a concealed camera (a form of disorderly 

conduct) (§ 647, subd. (j)(3)(A)), the jury had to find defendant (1) used a concealed 

camera to secretly photograph a person to view that person’s body or undergarments in a 
13

bedroom or bathroom, (2) without the consent or knowledge of the person being 

photographed, and (3) with the intent to invade that person’s privacy.5

Substantial evidence establishes defendant used a concealed camera to photograph 

B.R.’s body in her first home bedroom and bathroom and her second home bedroom 

without her consent and with the intent to invade her privacy. Even though a camera was

not found in the second home attic, it was reasonable for the jury to conclude one had 

been there above B.R’s bedroom, and others had been placed above her bedroom and 

bathroom in the first home. It was obvious the videos and pictures had been taken from a 

point in the ceilings. Insulation was found on the floor of the second home bedroom, 

suggesting someone had secretly removed a camera from that room’s ceiling. 

Audio/video cables were found running from where the smoke detector had been, with its 

small hole, back across the attic to an adapter, which was also connected to other 

electronic wiring and cables that led to a circuit breaker or power box located in the 

master bedroom where defendant and Tougeron slept. B.R. never gave her consent to 

any of the videos and photographs found in defendant’s profile, and the videos and 

photographs obviously were taken to invade her privacy repeatedly.

Defendant asserts the lack of cameras, and the fact the audio/video cables were not 

connected to any cameras, demonstrate there was insufficient evidence to convict him of 

unlawful use of a concealed camera. We disagree. The circumstantial evidence 

established photographs and videos had been taken from concealed cameras in B.R.’s 

 

5 Section 647, subdivision (j)(3)(A), reads: “Any person who uses a concealed 

camcorder, motion picture camera, or photographic camera of any type, to secretly 

videotape, film, photograph, or record by electronic means, another, identifiable person 

who may be in a state of full or partial undress, for the purpose of viewing the body of, or 

the undergarments worn by, that other person, without the consent or knowledge of that 

other person, in the interior of a bedroom, bathroom, changing room, fitting room, 

dressing room, or tanning booth, or the interior of any other area in which that other 

person has a reasonable expectation of privacy, with the intent to invade the privacy of 

that other person [is guilty of disorderly conduct].”
14

bedroom and bathroom in the first home and her bedroom in the second home. B.R. was 

not aware any of the videos and photographs of her had been taken. Those taken in the 

second home bedroom were no doubt facilitated by the audio/video cables found in the 

attic running from the smoke detector in the bedroom, and all of the photographs and 

videos had been stored in defendant’s password-protected profile on his computer. This 

evidence is very strong, and more than enough to support defendant’s conviction of 

unlawful use of a concealed camera without the production of an actual camera. 

II

Admission of, and Impeachment on, B.R.’s Civil Complaint

B.R. acknowledged she had met with an attorney for filing a civil action against 

defendant, but during her cross-examination, the trial court denied admitting into 

evidence a purported copy of her civil complaint on the grounds of hearsay. In closing 

argument, the prosecutor stated there may or may not have been a civil action. The trial 

court admonished the jury that, contrary to the prosecutor’s statement, the civil action 

existed and could be considered in evaluating the evidence. The court repeated this 

instruction in response to a jury question about how it could consider the civil action.

Defendant contends the trial court denied him his right to present a defense. He 

sought to impeach B.R. by establishing the allegations in the civil complaint were 

without factual support, thereby showing B.R. was willing to fabricate allegations. He 

faults the court for not taking judicial notice of the civil complaint. Had it done so, he 

allegedly could have cross-examined B.R. on the complaint’s specific allegations. 

Defendant asserts the admonition to the jury admitting the existence of the civil 

complaint after the prosecutor’s misstatement, without also admitting the complaint into 

evidence by means of judicial notice, was insufficient to cure the error and allow 

defendant to impeach B.R. properly. He does not challenge the court’s ruling denying 

admission of the complaint based on hearsay.
15

We affirm the trial court’s rulings on the limited record provided us on this issue. 

Even if the trial court had erred, we would conclude the error was harmless.

A. Additional background information

Defense counsel questioned B.R. during cross-examination about whether she had 

filed a civil lawsuit against defendant. She acknowledged speaking with her attorney, 

Mr. Shepard, but she initially testified she was not sure whether or not he had filed a 

lawsuit. Counsel asked her to read defendant’s exhibit A. When counsel asked her if 

defendant’s exhibit A was the civil complaint filed by her attorney, B.R. responded, “I 

don’t remember in that [sic], but it sounds like it.”

6

 When counsel stated she intended to 

discuss some of the complaint’s allegations with B.R., the prosecutor asked to approach 

the bench. Following the bench conference, the court announced it was sustaining a

hearsay objection to defendant’s exhibit A. The court did not record what transpired in 

the bench conference. Defendant’s exhibit A was never admitted into evidence. 

Counsel continued to ask B.R. questions regarding whether she had made certain 

factual assertions about defendant to Shepard. At one point, counsel showed B.R. 

defendant’s exhibit B. The document had Shepard’s name on the top.7 Then the 

following colloquy occurred:

“Q. Looking at who filed the lawsuit, the plaintiff and the defendant, do you 

recognize that?

“A. Yes.

“Q. Now, looking at the damages, right here and right here?

 

6 The clerk’s minutes describe defendant’s exhibit A as a “9 page document 

depicting Sacramento Superior Court of California Complaint for case number 34-2010-

00078380.” 

7 The clerk’s minutes describe defendant’s exhibit B as a “1 page document 

depicting - Statement of damages in B.R. vs. Travis Leith.” 
16

“A. I never seen [sic] this before.

“Q. Okay. I’m just asking you to look at this.

“A. Okay.

“Q. Okay.

“A. Definitely.

“Q. Are you aware how much you are suing [defendant] for?

“A. No.

“Q. You’re not?

“A. Until now I have not seen this before.

“Q. Okay. Well, you are actually suing [defendant] for --

“[Prosecutor] Objection, counsel is testifying.

“[Defense counsel] [sic] Objection sustained.

“Q. . . . Well, the other day [the prosecutor] and you, Mr. [T.]’s mother were able 

to call your attorney from outside this courtroom, were you not?

“A. Correct.

“Q. And at that time you knew that you were suing [defendant] for $1,000,000, 

correct? 

“A. I believe so, I didn’t directly talk to [attorney] Ken Shepard.

“Q. So when you just sat here and said I have no idea how much I’m suing 

[defendant] for, that’s incorrect, is it not?

“A. I really didn’t know until you showed me that. I talked to him the other day, 

but I still don’t know everything.

“[¶] . . . [¶]

“Q. . . . You know you are suing him for at least a million, right?

“A. I didn’t directly talk to Ken Shepard. I heard based on other people, but I 

don’t know if it’s $1,000,000, I can’t be exact on that.” 
17

During her closing argument, the prosecutor recalled the discussion about a civil 

action. She said: “There’s been some mention of a civil trial. You are the criminal 

jurors. The civil trial is for another jury. You are here to decide simply whether the 

defendant is guilty of the crimes charged. [¶] You have no concern with what’s 

happening with a pending lawsuit that may or may not exist. We don’t know much about 

that, and that is not your concern.” 

Defense counsel objected to the prosecutor’s statements. Outside the presence of 

the jury, counsel moved for a mistrial based on prosecutorial misconduct: the statement 

the civil action may or may not exist, and the statement the civil action was not the jury’s 

concern. She stated the record already showed the prosecutor knew the civil action was 

pending. The prosecutor had spoken with B.R.’s civil attorney and had learned the action 

was seeking $1,000,000 in damages.

Defense counsel continued: “It has been the defense theory of this case from the 

very beginning, from opening through the entire questioning of this case until closing, 

which I have obviously not had a chance to do, that the motive for [B.R.] to accuse 

[defendant] of this conduct was based in large part on financial gain through a civil 

lawsuit.

“In some ways we are not able to question that, but we were in other ways, that 

testimony did come out, and for [the prosecutor] to get up in front of the jury and say two 

things, one, that the civil suit may or may not be in existence, and -- that’s one, and two, 

that they are not to consider it, which is not the law.

“They absolutely can consider it as motive and bias, and the credibility of 

witnesses. It’s clear that financial outcome in the case is something they can 

consider . . . .” 

In response, the prosecutor stated: “I don’t know exactly what I said, but I think I 

was referring to the fact whether -- about the jurors’ knowledge in this case about 

whether the -- the civil trial is pending or not.
18

“Again, there was no concrete evidence presented to the jury in terms of certified 

documents or any other documents showing that a civil suit was in existence, and I may 

have misspoken, but I don’t think that amounts to a mistrial.

“I think that the Court, and I can correct the record, that [B.R.] did testify that she 

was aware she had visited with an attorney and that papers had been filed.

“Again, what I maintain -- what I did mean to say is that we are not aware of what 

the status of that case is, and that trial is a separate trial from this trial, and the jurors 

should not be focused on the money issues in this case.” 

The trial court “absolutely disagree[d]” with the prosecutor’s characterization of 

the issue. The evidence showed a civil lawsuit existed, and the existence of that lawsuit 

was “certainly” something the jury could consider. 

However, the trial court concluded the misstatements did not rise to the level of a 

mistrial. It decided to, and did, admonish the jury that the civil action existed, and that it 

could be considered by the jury in evaluating the evidence. 

The prosecutor then continued her argument: “Ladies and gentlemen of the jury, I 

misspoke, and the Judge has corrected that. Again, you are the finders of the fact, and 

anytime there’s a conflict in the evidence, you can ask for a readback of testimony to 

figure out exactly what the facts are in this case.

“[¶] . . . [¶]

“What is important in this case is the record. And again, there is a civil trial 

pending in this case. [B.R.] testified that her lawyer had filed papers, that she met with a 

lawyer two weeks after, and again it’s for -- it’s up to you to consider how you want to 

consider that.

“[B.R.] has every right to bring a civil suit in this case. She has suffered a harm, 

and there are damages; but you are not the jury to decide the damages. You are the jury 

in this case that will decide the guilt or innocence of [defendant].” 
19

During its deliberations, the jury asked the court for “[i]nstructions on how to 

consider the civil suit.” The court replied: “In evaluating witness testimony, you may 

consider anything that reasonably tends to prove or disprove the truth or accuracy of that 

testimony. Among the factors that you may consider (Instruction 226) is[:] [¶] Was the 

witness’s testimony influenced by a factor such as bias or prejudice, or a personal 

interest in how the case is decided. [¶] The existence of the civil suit is a factor for the 

jury to consider in evaluating witness testimony.” (Original italics.)

B. Analysis

Defendant contends the trial court denied him his right to present a defense by not 

taking judicial notice of the complaint in B.R.’s civil action, which, he asserts, would 

have allowed him to cross-examine B.R. regarding that complaint’s allegations. He 

claims the court’s admonition to the jury verifying the existence of the civil action after 

the prosecutor’s alleged misconduct was insufficient to allow defendant to impeach B.R.

fully.

A court is permitted to take judicial notice of court records. (Evid. Code, § 452, 

subd. (d).) A court must take judicial notice of court records if a party requests it, gives 

each adverse party sufficient notice of the request, and gives the court sufficient 

information to review the request. (Evid. Code, § 453.) Nothing in the record shows

defendant established a proper foundation or requested the trial court take judicial notice 

of defendant’s exhibit A. Thus, the court had no basis for doing so, and defendant is left 

to argue that the court abused its discretion by not taking permissive judicial notice of 

defendant’s exhibit A on its own motion. Where a party does not establish a proper 

foundation and fails to request judicial notice, he can rarely show the trial court 
20

committed reversible error by not granting permissive judicial notice on its own motion. 

(See 1 Witkin, Cal. Evidence (5th ed. 2012) Judicial Notice, § 38, p. 148.)8 

Defendant also did not include in the appellate record a copy of defendant’s 

exhibit A, further complicating his burden. As a result, we have no ability to determine 

whether defendant’s exhibit A was authenticated or whether it should have been admitted 

in the regular course of trial or might have been under permissive judicial notice. We 

must therefore assume all facts necessary to support the trial court’s decision not to admit 

on its own motion defendant’s exhibit A on the basis of hearsay and not to admit it under 

judicial notice, and we uphold the decision on that basis. “A judgment or order of the 

lower court is presumed correct. All intendments and presumptions are indulged to 

support it on matters as to which the record is silent, and error must be affirmatively 

shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics.)

The prosecutor’s misstatements at argument do not compel a different result. The 

trial court’s admonition and instruction, and the prosecutor’s confession, more than cured 

any error that could have arisen from the prosecutor’s misstatement. Both informed the 

jury the prosecutor had misstated the evidence, a civil action by plaintiff was ongoing,

and the jury could consider that action’s existence when evaluating the credibility of 

witnesses. The jury was well aware B.R. had spoken with an attorney soon after she 

discovered the pictures about bringing a civil action, and that she believed the action was 

 

8

In defendant’s points and authorities supporting his motion for new trial, defense 

counsel asserted he had asked the court in the sidebar conference to take judicial notice of 

defendant’s exhibit A. The prosecutor, in his opposition points and authorities, claims 

defense counsel made no such request during the conference. Neither attorney cited to 

the record to support their claims, nor did they make their claims under oath. There is 

thus no evidence defendant requested the court take judicial notice. It is the appellant’s 

burden to ensure an adequate record is kept of the proceedings to allow us to consider 

issues raised on appeal. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-

1533.) Such sidebar conferences should always be placed on the record.
21

seeking possibly $1,000,000 in damages from him. The trial court’s instruction and 

admonition clearly authorized the jury to consider evidence about the civil action in 

evaluating B.R.’s credibility.

Even if we determined the trial court had erred by not admitting defendant’s 

exhibit A under any basis (assuming it to be an authenticated copy of B.R.’s civil 

complaint), we would find the error harmless under any standard. (People v. Watson

(1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 

705, 710-711].) There is no reasonable possibility defendant would have received a more 

favorable result had defendant’s exhibit A been admitted into evidence. Nothing in any 

alleged inconsistency between B.R.’s testimony and the purported allegations written by 

her attorney in defendant’s exhibit A would have overcome the evidence supporting 

defendant’s conviction. His password-protected profile, not known by anyone else in the 

home, contained videos and photographs of B.R. engaged in sexual conduct recorded 

from an overhead camera in her bedrooms and bathroom in two different houses of which 

she had no knowledge and for which she had granted no consent. An audio/video cable 

running in the attic from near B.R.’s smoke detector in her second home bedroom ceiling 

back to other electronic equipment above defendant’s bedroom indicates some type of 

camera had been there, and the insulation on the bedroom floor indicates the camera had 

been removed recently. Defendant was the only person in the household with anything 

more than a basic knowledge and expertise of cameras, computers and electronics. The 

evidence overwhelmingly establishes his guilt, and the ability to cross-examine B.R. on 

differences between her testimony and defendant’s exhibit A would not have changed the 

verdict.

III

GPS Monitoring as a Term of Probation

The trial court sentenced defendant to five years of probation with one year in the 

county jail. The court conditioned probation on defendant being subject to GPS 
22

monitoring for his probation term. Defendant contends the court abused its discretion by 

imposing this condition. He claims the restriction bears no reasonable relationship 

between him and his offenses. He scored in the low-risk category of potentially 

reoffending on the Static-99R test, and he has no prior criminal history. He asserts he is 

not a high-risk sex offender and there is no evidence the public was in any risk on his 

account. We conclude the trial court did not abuse its discretion.

“The classic formulation of a trial court’s power to impose probation conditions is 

taken from People v. Lent (1975) 15 Cal.3d 481, 486, where our Supreme Court stated: 

‘A condition of probation will not be held invalid unless it “(1) has no relationship to the 

crime of which the offender was convicted, (2) relates to conduct which is not in itself 

criminal, and (3) requires or forbids conduct which is not reasonably related to future 

criminality . . . .” [Citation.]’ ” (People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 

omitted.)

The probation condition is valid because it relates to the crimes for which 

defendant was convicted, and it assists in requiring or forbidding conduct that is 

reasonably related to future criminality. Section 1210.7 authorizes continuous electronic 

monitoring of probationers, provided the monitoring has as its primary objective “the 

enhancement of public safety through the reduction in the number of people being 

victimized by crimes committed by persons on probation.” (§ 1210.7, subd. (b).) In 

defendant’s case, the device allows the probation department to monitor his compliance 

with his other probation conditions, including attending counseling, not being in the 

presence of any minor or groups of minors under the age of 18 without approved 

supervision, not knowingly engaging in volunteer work involving minors, and not having 

any contact with B.R. All of these conditions are designed to protect public safety by 

ensuring defendant does not use his extensive computer skills to victimize unsuspecting 

persons, especially minors, while on probation, and the GPS monitoring significantly aids 

in their enforcement. The court did not abuse its discretion in imposing the condition.
23

DISPOSITION

The judgment is affirmed.

 NICHOLSON , Acting P. J.

We concur:

 BUTZ , J.

 MAURO , J.