Filed 11/6/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LUKE NOEL WILSON,

Defendant and Appellant.

 D074992

 (Super. Ct. No. SCD263466)

ORDER MODIFYING 

OPINION AND DENYING 

REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on October 21, 2020, be 

modified as follows:

On page 50, the sentence beginning, “As Wilson concedes on appeal,” is 

deleted and the following sentence is inserted in its place:

As Wilson concedes on appeal, his counsel objected to some, 

but not all, of these allegedly improper acts by the 

prosecution.

There is no change in the judgment.
2

Appellant's petition for rehearing is denied.

McCONNELL, P. J.

Copies to: All parties
Filed 10/21/20 (unmodified version)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LUKE NOEL WILSON,

Defendant and Appellant.

 D074992

 (Super. Ct. No. SCD263466)

APPEAL from a judgment of the Superior Court of San Diego County, 

Esteban Hernandez, Judge. Affirmed.

Charles M. Sevilla, for Defendant and Appellant.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. 

Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and 

Respondent.

After the trial court denied his pretrial motion to suppress evidence

obtained without a warrant, a jury convicted Luke Noel Wilson of one count 

of oral copulation of a child 10 years or younger (Pen. Code, § 288.7, 
2

subd. (b))1 and three counts of committing a lewd act upon a child (§ 288, 

subd. (a)), further finding true the allegations that two counts were 

committed against more than one victim. (§ 667.61, subds. (b), (c), and (e).) 

The court sentenced Wilson to an indeterminate prison term of 45 years to 

life. 

Wilson appeals, contending (1) the trial court erred in denying his 

motion to suppress; (2) the evidence was insufficient to support his 

convictions under section 288, subdivision (a); (3) he was denied his due 

process right to notice of the nature of the charges against him; (4) the 

prosecution knowingly introduced false evidence at trial; (5) the prosecution 

failed to produce exculpatory evidence before trial in violation of Brady v. 

Maryland (1963) 373 U.S. 83 (Brady); (6) the trial court’s jury instructions 

and answers to jury questions were incomplete, misstated the law, and were 

unduly prejudicial; (7) prosecutorial misconduct and the court’s failure to 

address the misconduct denied him his right to a fair trial; (8) the mandatory 

sentence was cruel and/or unusual as applied to Wilson; and (9) cumulative 

error. We conclude Wilson’s contentions lack merit. Accordingly, we affirm 

the judgment.

FACTUAL BACKGROUND

For purposes of this section, we state the evidence in the light most 

favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; 

People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be 

discussed where relevant in the following sections. 

Using a website where women posted photos with the hopes of finding 

modeling and acting jobs, Wilson contacted an 18-year-old woman and hired 

1 All further statutory references are to the Penal Code unless otherwise 

specified.
3

her to pose for a photo shoot. The woman was fully clothed in the initial 

photo shoot, but over time Wilson persuaded her to first pose partially nude 

and, eventually, fully nude in hotel rooms after plying her with alcohol and 

paying her to pose. 

The woman later introduced Wilson to her younger sister, J.A., who 

was only 15 years old at the time. Wilson paid the two sisters to pose, fully

clothed, for photographs together in Balboa Park. 

At the Balboa Park photo shoot, Wilson asked J.A. for her phone 

number and began contacting her separately from her sister. J.A. later 

agreed to another photo shoot, this time in a hotel room in lingerie. 

Thereafter, Wilson continued to send her “proposals” via e-mail, text 

message, or a texting “app” for photo shoots, detailing how much he would 

pay her to pose in certain ways. Over time, but while she was still a minor, 

Wilson progressed to paying J.A. to pose for nude and sexually explicit 

photos. Providing J.A. with alcohol to get her “more settled and calm,” 

Wilson eventually paid J.A. to let him film her while he performed sexual 

acts and while she used sex toys on herself or allowed him to use the same 

toys on her body. These “photo shoots” occurred when J.A. was 15 or 16 years 

old. After the photo shoots, Wilson sent the photos to J.A., who testified that 

she liked the way she looked in the photos. By the time J.A. was 16 or 

17 years old, Wilson was paying her to have sexual intercourse with him 

while he filmed the encounter. Occasionally, during photo shoots, Wilson 

would show J.A. child pornography. 

When J.A. was 17, she became pregnant with her boyfriend (not 

Wilson). She gave birth to her daughter in late 2013, after she turned 18 and 

shortly after her high school graduation. 
4

J.A. continued to do photo shoots with Wilson while she was pregnant. 

The photo shoots with Wilson, including nude photo shoots and filming 

during sexual acts, also continued after J.A. gave birth to her daughter. 

Around the same time, J.A. lost her job and was no longer working. She 

continued to accept payments from Wilson to perform in photo shoots, 

explaining that she could make the same amount of money in exchange for 

one photo shoot that she would earn working for two weeks at her previous 

part-time job. 

Wilson later paid J.A. to send him a video of her having sex with her 

boyfriend. Over time, Wilson progressed to suggesting a proposal of paying 

J.A. to take photos of her touching her infant daughter. When her daughter 

was about nine months old, J.A. accepted a proposal from Wilson to pay her 

to take a photo with her hand on her daughter’s buttocks and send it to him. 

Thereafter, Wilson offered to pay J.A. to send him photos or videos showing 

her orally copulating her daughter. J.A. again accepted the proposal and sent 

Wilson a minute-long video. 

Wilson was also aware that J.A. often babysat her young cousin. 

Wilson began making offers to J.A. for her to touch her cousin in exchange for 

several hundred dollars. When the girl was about five years old, J.A. agreed 

to do so, sending Wilson photos of her touching her cousin’s bare buttocks. 

J.A. admitted to knowing at the time that what she was doing was 

wrong. Despite this knowledge, she continued to communicate regularly with 

Wilson without expressing any opposition. She admitted she never contacted 

the police, even after Wilson escalated to asking J.A. to perform and film 

sexual acts on minors. Instead of objecting, J.A. reacted with enthusiasm, 

responding to his proposals with e-mails full of exclamation points and 

frequently used the slang “lol,” meaning “laugh[ing] out loud,” in response to 
5

his extreme proposals. When Wilson asked her to perform oral copulation on 

two other minor girls, J.A. responded that she would do it and suggested,

“Let’s do [it] ASAP lol.” Later, Wilson sent her photographs of a young girl 

that he wanted J.A. to perform with, to which J.A. responded “Lol aw she’s 

soo small and cute lol.”2

Several months later, J.A. declined Wilson’s offers for additional photos 

of the young girls, claiming she felt guilty and was no longer comfortable with 

the idea. However, J.A. continued to communicate with Wilson up to the 

date of her arrest and participated in solo photo shoots for him. 

In August 2015, J.A. was contacted by federal law enforcement and 

initially denied knowing Wilson or participating in his photo shoots. When 

confronted with the photos of her daughter, J.A. admitted the truth and 

began cooperating. 

J.A. was initially charged with multiple offenses, but accepted a plea 

agreement wherein she pleaded guilty to four counts of felony child abuse 

(§ 273a, subd. (a)) and was sentenced to 10 years of probation. 

As detailed ante, part of Wilson’s course of conduct included offering to 

pay for photographs depicting lewd acts with minors, receiving the resulting 

photographs, and then distributing those photographs. Wilson used his 

“Gmail” e-mail account, hosted by Google, to communicate with the women. 

The Google Terms of Service specify that users may only use the Google 

2 The record suggests J.A. never completed these acts involving girls 

other than her daughter and her cousin despite her willingness to do so.
6

services as “permitted by law.”3 Google informs users that it “may review 

content to determine whether it is illegal or violates our policies, and we may 

remove or refuse to display content that we reasonably believe violates our 

policies or the law. But that does not necessarily mean that we review 

content, so please don’t assume that we do.” 

Google, on its own initiative, took steps to ensure its systems were free 

of illegal content, particularly child sexual abuse material. Since 2008, 

Google has used a screening process utilizing a proprietary “hashing”

technology to identify apparent child sexual abuse images on its services. 

Trained Google employees use software to generate a “hash” value for any 

image file they find depicting child pornography. The hash value is 

generated by a computer algorithm and consists of a short alphanumeric 

sequence that is considered unique to the computer file.4 (Power of the Hash,

supra, 119 Harv. L.Rev.F. at p. 39.) The resulting hash values are then 

added to a repository. The repository therefore contains hash values, not the 

actual child pornography images. 

When a user uploads new content to its services, Google automatically 

scans and generates hash values for the uploaded files and compares those 

hash values to all known hash values in the repository. If Google’s system 

3 In support of the People’s opposition to the motion to suppress, a 

Google employee submitted a declaration with the Google Terms of Service 

attached as an exhibit. The record contains no indication of whether Wilson 

reviewed these terms or was otherwise aware of their content. We resolve 

this case without addressing the terms of service. 

4 By way of example, the hash value for a file produced by Google in this 

case is “73500566f447032d5137a91e931204eb.” Such a hash value is unique 

to the file, but cannot be “ ‘reversed’ ” to generate the contents of the file 

itself. (Salgado, Fourth Amendment Search and the Power of the Hash (2005) 

119 Harv. L.Rev.F. 38, 40 (hereinafter Power of the Hash.) 
7

detects a match between a hash value for uploaded content and a hash value 

in the repository for a file which was previously identified as containing 

apparent child pornography, the system generates a report to be sent to the 

National Center for Missing and Exploited Children (NCMEC) in the form of 

a “Cybertip.”5 In some cases, Google sends the report without opening the 

image file, while in other cases a Google employee opens the image for 

manual review to confirm it contains apparent child pornography. 

In June 2015, Google’s system identified four image files, each with 

hash values matching values for apparent child pornography images in its 

repository, attached to an e-mail created by the Gmail account later 

identified as belonging to Wilson.6 Google generated a Cybertip report to 

NCMEC identifying and forwarding the four image attachments. The report 

included only the four image files, not the e-mail body text or any other 

information specific to the e-mail. Google classified the images, using a 

common categorization matrix, as “A1,” indicating they depicted 

prepubescent minors engaged in sex acts. The report reflected that a Google 

5 Under federal law, NCMEC is statutorily obligated to serve as a 

national clearinghouse and maintain a tip line for internet service providers 

to report suspected child sexual exploitation violations. (See, e.g., United 

States v. Ackerman (10th Cir. 2016) 831 F.3d 1292, 1296 (Ackerman); 

18 U.S.C. § 2258A(c).) NCMEC is statutorily obligated to forward those 

reports, known as “Cybertips,” to federal law enforcement and may, and often 

does, forward the reports to state and local law enforcement. (Ackerman, at 

p. 1296.)

6 Although Google explains that its search is entirely voluntary and 

serves its own non-governmental interests, it has a duty under federal law to 

report apparent child pornography to the NCMEC once it obtains actual 

knowledge of such content. (18 U.S.C. § 2258A, subd. (a).)
8

employee did not manually review the files after they were flagged using 

Google’s hashing technology, and before sending them to NCMEC. 

When it received the report from Google, NCMEC did not open or view 

the image files, but forwarded the report to the San Diego Internet Crimes 

Against Children (ICAC) task force after it determined the internet address 

associated with the Gmail account was in San Diego. The ICAC task force is 

an office comprised of individuals from multiple agencies, including the 

federal Department of Homeland Security and local law enforcement. When 

ICAC received the report, an administrative assistant with the San Diego 

Police Department printed the report with the attached electronic images,

and provided them to two ICAC investigators. Those investigators viewed 

the images and determined the images warranted an investigation. An ICAC 

sergeant conducted his own review and agreed with that recommendation. 

Using the information contained in the report and based on his review 

of the images, an ICAC investigator obtained a search warrant to obtain from 

Google all content and user information associated with the identified Gmail 

address. The investigator’s affidavit establishing probable cause for the 

warrant was premised entirely on the investigator’s viewing of the images 

and did not discuss Google’s proprietary hash value technology, the 

underlying hash value match performed by Google, or even a general 

overview of this type of computerized matching system. 

The warrant resulted in the discovery of Wilson’s e-mails offering to 

pay J.A. to molest and exploit children. The investigator also reviewed 

e-mails in which Wilson distributed apparent child pornography to others. 

Using the information received from Google and from Wilson’s internet 

service provider to identify Wilson, the investigator then obtained a search 

warrant for Wilson’s apartment and vehicle, and to seize computer 
9

equipment, storage devices, and other effects. While executing the search 

warrant, a participating officer observed a backpack fall from Wilson’s 

balcony. The officer retrieved the backpack, which held Wilson’s checkbook 

and a thumb drive containing thousands of images of child pornography. 

Additional images were found on devices in Wilson’s apartment. 

Using information gleaned from Wilson’s e-mails produced in response 

to the search warrant, the investigator was able to identify and locate the 

woman (J.A.) Wilson paid to perform the sex acts and send him some of the 

photographs. The investigator obtained additional warrants to search her 

residence and online accounts, leading to additional evidence used in Wilson’s 

prosecution. 

PROCEDURAL HISTORY

Before trial, Wilson filed a motion to suppress evidence pursuant to 

section 1538.5. Wilson argued the warrantless “search” of the e-mail 

attachments was illegal, requiring the suppression of those images and all 

evidence obtained indirectly from the initial warrantless search, including all 

of his e-mails, the e-mails of the woman who sent him the images, and the 

evidence recovered from his home. 

At the hearing on the suppression motion, both parties stipulated to the 

admission as evidence of a declaration by a Google employee explaining 

Google’s hashing and reporting process, that any testimony she would have 

offered would be the same as the contents of her declaration, and to the 

admission into evidence of the Google Terms of Service attached to her 

declaration. The parties also stipulated that Wilson had a subjective 

expectation of privacy in his e-mail account. 

William Thompson, the ICAC investigator who reviewed Wilson’s 

e-mail attachments and sought the search warrants, testified about his 
10

investigation. Thompson acknowledged that neither Google nor NCMEC 

opened the image files attached to the e-mail. Thompson did not obtain a 

warrant before viewing the attachments. 

Thompson also explained that in early 2017, ICAC changed its process 

relating to Cybertips with file attachments when the electronic service

provider indicates it did not open the image files. Now, rather than 

immediately printing out the images and viewing them, the attached files are 

locked and ICAC first obtains a search warrant to view the attachments. 

A computer forensic agent working for the Department of Homeland 

Security testified about the hashing process. He opined that it would be 

“almost inconceivable” for two files to have the same hash value if the files 

were not exactly the same. Using an example of one commonly-used hash 

value algorithm, he explained the odds of matching hash values for different 

files would be “something like 340 billion, billion, billion, billion to one.” 

The court denied the motion to suppress. As the court explained, “it 

appears that the crux of the motion is that the visual inspection of the images 

that were flagged by Google’s proprietary hashing technology and whether or 

not it expanded beyond Google’s private search and therefore would require a 

warrant of searching.” The court found that Wilson had no reasonable 

expectation of privacy in the use of an e-mail account with Google for 

“misconduct or unlawful conduct.” The court explained that “bottom line 

when these kind of internet tools are used[,] [t]he tools have to be used in a 

lawful manner. And the terms of service alerts the users that Google may 

investigate this conduct or suspecting this conduct.” 

The court also found that no search under the Fourth Amendment 

occurred because law enforcement simply repeated the private search 

performed by Google. Acknowledging no employee at Google opened the file 
11

to look at the photos, the court found the opening of the photos was not a 

significant expansion of Google’s private search because “Google had 

previously confirmed that each of the four images in defendant’s e-mail was 

child pornography. Special Agent Thompson already knew before visually 

examining the images, the court can reasonably infer from the A1 

classification, that each of the four images depicted a prepubescent minor 

engaged in [a] sex act.” Thus, the court concluded that the investigator was 

certain that he would not learn anything by opening the attachment that 

“had not previously been learned during the private search,” such that 

opening the attachments and viewing the images did not constitute a search. 

After the preliminary hearing, the district attorney filed an information 

charging appellant with four offenses. Count One, alleging a violation of 

section 288.7, subdivision (b) for the oral copulation of a child of 10 years old 

or younger, was premised on Wilson paying J.A. to orally copulate her 

daughter. Count Two alleged a violation of section 288, subdivision (a) for 

the lewd and lascivious touching of a minor arising from the same incident as 

Count One. Counts Three and Four also alleged violations of section 288, 

subdivision (a), and were premised on J.A.’s touching of her daughter’s and 

cousin’s buttocks on separate occasions. Counts Two, Three, and Four also 

alleged that Wilson committed the acts against more than one victim within 

the meaning of section 667.61, subdivisions (b), (c), and (e). 

Following trial, the jury found Wilson guilty of all counts and found 

true the enhancement allegations pursuant to section 667.61, 

subdivisions (b), (c), and (e) as to two counts. The court denied Wilson’s 

motion for new trial and sentenced Wilson to an indeterminate prison term of 

45 years to life. 
12

DISCUSSION

I

Motion to Suppress: Private Search Doctrine

A. Standard of Review

“ ‘In reviewing a trial court’s ruling on a motion to suppress evidence, 

we defer to that court’s factual findings, express or implied, if they are 

supported by substantial evidence. [Citation.] We exercise our independent 

judgment in determining whether, on the facts presented, the search or 

seizure was reasonable under the Fourth Amendment.’ ” (Robey v. Superior 

Court (2013) 56 Cal.4th 1218, 1223 (Robey).) “Thus, while we ultimately 

exercise our independent judgment to determine the constitutional propriety 

of a search or seizure, we do so within the context of historical facts 

determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952, 979.)

Here, the underlying facts surrounding the search were not in dispute. 

Thus, we exercise our independent judgment in answering whether the 

search was permissible under the Fourth Amendment. 

B. Governing Law

“ ‘The Fourth Amendment proscribes all unreasonable searches and 

seizures, and it is a cardinal principle that “searches conducted outside the 

judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few 

specifically established and well-delineated exceptions.” ’ ” (Robey, supra, 

56 Cal.4th at p. 1224.) 

But the Fourth Amendment does not apply to private searches. 

(Burdeau v. McDowell (1921) 256 U.S. 465, 475 [finding that the “origin and 

history [of the Fourth Amendment] clearly show that it was intended as a 

restraint upon the activities of sovereign authority, and was not intended to 
13

be a limitation upon other than governmental agencies”]; People v. North

(1981) 29 Cal.3d 509, 514 [“Historically, courts have consistently held that 

the Fourth Amendment’s prohibition against unreasonable search and 

seizure does not apply to searches by private citizens.”].) Additionally, if a 

government search is preceded by a private search, the government search 

does not implicate the Fourth Amendment as long as it does not exceed the 

scope of the initial private search. (United States v. Jacobsen (1984) 466 U.S. 

109, 115-117 (Jacobsen); see Walter v. United States (1980) 447 U.S. 649, 657

(Walter).)7 

The parameters of this private search doctrine—relied upon by the 

Attorney General here—were discussed by the United States Supreme Court 

in Jacobsen. In that case, FedEx employees opened a package which had 

been damaged in transit. (Jacobsen, supra, 466 U.S. at p. 111.) The 

employees inspected the torn package, removed and cut open a tube found 

inside, and discovered plastic bags containing a suspicious white powdery 

substance. (Id. at pp. 111, 115.) The employees repackaged the shipment’s 

contents and contacted federal law enforcement agents with the Drug 

Enforcement Administration (DEA). (Id. at pp. 111-112.) The agents 

inspected the partially open container, removed the contents, opened the 

plastic bags, and removed a small quantity of the powder to perform a field 

chemical test, which identified the substance as cocaine. (Ibid.)

7 “Although the Fourth Amendment does not apply to a search or 

seizure, even an arbitrary one, effected by a private party on his own 

initiative, the Amendment protects against such intrusions if the private 

party acted as an instrument or agent of the Government.” (Skinner v. Ry. 

Labor Execs. Ass’n (1989) 489 U.S. 602, 614.) No argument has been made 

that Google was an “instrument or agent” of the government here. 
14

The defendant challenged the agents’ opening of the package and 

testing of the powder as a warrantless search in violation of his Fourth 

Amendment rights. (Jacobsen, supra, 466 U.S. at p. 112.) In concluding no 

Fourth Amendment violation occurred, the Supreme Court first explained 

that the private search conducted by the FedEx employees did not implicate 

the Fourth Amendment. (Id. at p. 115 [“Whether [the initial invasions by the 

FedEx employees] were accidental or deliberate, and whether they were 

reasonable or unreasonable, they did not violate the Fourth Amendment 

because of their private character.”], fn. omitted.) The Court then explained 

that “[t]he additional invasions of [the defendant’s] privacy by the 

[g]overnment agent must be tested by the degree to which they exceeded the 

scope of the private search.” (Ibid.) The Court reasoned that “[o]nce 

frustration of the original expectation of privacy occurs, the Fourth 

Amendment does not prohibit governmental use of the now nonprivate 

information,” and “[t]he Fourth Amendment is implicated only if the 

authorities use information with respect to which the expectation of privacy 

has not already been frustrated.” (Id. at p. 117.) 

Applying these principles, the Court held that the government’s 

actions—in examining and then later testing the white powder—did not 

violate the Fourth Amendment. Since the agent’s “removal of the plastic 

bags from the tube and the agent’s visual inspection of their contents enabled 

the agent to learn nothing that had not previously been learned during the 

private search,” the Court held it “infringed no legitimate expectation of 

privacy and hence was not a ‘search’ within the meaning of the Fourth 

Amendment.” (Jacobsen, supra, 466 U.S. at p. 120.) The Court observed 

that, even though the white powder was not in plain view because it was still 

enclosed in some packaging, “there was a virtual certainty that nothing else 
15

of significance was in the package and that a manual inspection of the tube 

and its contents would not tell [the agent] anything more than he already had 

been told” by the FedEx employees. (Id. at p. 119.) In other words, the 

government’s actions merely confirmed the FedEx employees’ recollection

concerning the contents of the package. (Ibid.) “The advantage the 

[g]overnment gained thereby was merely avoiding the risk of a flaw in the 

employees’ recollection, rather than in further infringing respondents’ 

privacy. Protecting the risk of misdescription hardly enhances any legitimate 

privacy interest, and is not protected by the Fourth Amendment.” (Ibid.) 

Similarly, with respect to the field test, the Court held that testing the 

substance did not violate the Fourth Amendment because a “chemical test 

that merely discloses whether or not a particular substance is cocaine does 

not compromise any legitimate interest in privacy,” and therefore does not 

constitute a search. (Jacobsen, supra, 466 U.S. at p. 123.) As the Court 

explained: “Congress has decided—and there is no question about its power 

to do so—to treat the interest in ‘privately’ possessing cocaine as illegitimate; 

thus governmental conduct that can reveal whether a substance is cocaine, 

and no other arguably ‘private’ fact, compromises no legitimate privacy 

interest.” (Ibid.) The Court concluded that “the likelihood that official 

conduct of the kind disclosed by the record will actually compromise any 

legitimate interest in privacy seems much too remote to characterize the 

testing as a search subject to the Fourth Amendment.”8 (Id. at p. 124.)

8 The Court compared the government’s field testing to the government’s 

canine sniff of luggage in United States v. Place (1983) 462 U.S. 696, 707, 

which was held not to be a search because a sniff can disclose only the 

presence or absence of contraband. (Jacobsen, supra, 466 U.S. at pp. 123-

124.) 
16

C. Application of the Private Search Doctrine 

Wilson contends the private search doctrine does not apply here and, 

even if it does, the government “far exceeded the scope of Google’s automated 

hash match.” Applying the principles set forth in Jacobsen, we reject 

Wilson’s claims and conclude the government’s actions did not violate the 

Fourth Amendment. 

We begin by examining Google’s actions. To summarize, Google has a 

team of employees who are trained on how to recognize child pornography 

and, since 2008, Google has used a computerized “hashing technology” to 

assist in this process. At least one Google employee reviews an offending 

child pornography image before it is assigned a unique hash value, or a 

“digital fingerprint,” that is then stored in Google’s repository of hash values. 

Google then scans all user content uploaded to its services and compares the 

content to the repository of hash values to identify any duplicate images of 

apparent child pornography as defined under 18 U.S.C. section 2256. Other 

users can also flag suspicious content and bring it to Google’s attention, but 

“[n]o hash is added to [Google’s] repository without the corresponding image 

first having been visually confirmed by a Google employee to be apparent 

child pornography.” When this process yields a match in hash values—i.e., 

the hash value of a user’s content matches a hash value corresponding with 

child pornography viewed by Google and stored in its repository—Google 

prepares a report to send to NCMEC. In some cases, a Google employee 

manually looks at the user content. In other cases, Google reports the user to 

NCMEC without again viewing the image whose hash value matches a hash 

value in its repository. 

In this case, Wilson uploaded four offending images (photographs) 

using Google’s services. Utilizing its scanning process and specifically its 
17

“hashing technology,” Google determined that the content constituted child 

pornography and classified the content as “A1,” indicating “that the content 

contained a depiction of prepubescent minor engaged in a sexual act.” Google 

submitted a report, along with the four photographs, to NCMEC. It did not 

include “any email body text or header information associated with the 

reported content.” As in other cases where a Google employee has already 

reviewed an offending image in the past, in this case a Google employee did 

not re-review Wilson’s photographs concurrently to submitting the report to 

NCMEC. Google also did not review the content of the e-mail message to

which the images were attached. Around the same time that it submitted the 

report to NCMEC, Google terminated Wilson’s account. 

All of Google’s actions—including scanning user content, assigning 

hash values to that content, comparing user content to a repository of hash 

values, flagging offending images with hash values that match previouslyreviewed child pornography images, and sending the apparent child 

pornography to NCMEC—constitute private action that was not performed at 

the direction of the government.9 The Fourth Amendment’s protection “is 

wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected 

by a private individual not acting as an agent of the [g]overnment or with the 

participation or knowledge of any governmental official.’ ” (Jacobsen, supra, 

466 U.S. at pp. 113-114.) As such, no violation of the Fourth Amendment 

occurred as a result of Google’s private actions. 

9 Google was not aware of any investigation involving Wilson prior to 

submitting its report to NCMEC. As previously indicated, Wilson does not 

contend that Google or NCMEC were acting as governmental agents in this 

case. 
18

The government’s subsequent actions—consisting of opening the 

electronic files submitted to it by NCMEC and viewing the four images 

attached to Google’s Cybertip—did not exactly replicate Google’s private 

actions. Applying Jacobsen, we therefore consider the degree to which the 

agent’s additional invasions of Wilson’s privacy exceeded the scope of Google’s 

private search. (Jacobsen, supra, 466 U.S. at p. 115.) Before the government 

even received Wilson’s photographs, Google had already reviewed identical 

images in the past; scanned all of Wilson’s electronic communications to 

search for content with matching hash values; flagged four of Wilson’s images 

as matching images Google had previously observed; classified the matching 

images as A1, indicating they depicted prepubescent minors engaged in 

sexual acts; forwarded all four images to NCMEC as part of a Cybertip 

report; and terminated Wilson’s account. As the Court explained in Jacobsen, 

“[t]he Fourth Amendment is implicated only if the authorities use 

information with respect to which the expectation of privacy has not already 

been frustrated.” (Id. at p. 117.) Because Google’s actions, outlined above, 

frustrated any expectation of privacy Wilson possessed in the four 

photographs at issue, the government was free to use this now nonprivate 

information without violating the Fourth Amendment. (Ibid.)10 No privacy 

interest remained in the four images following the private search by Google.

The agent in this case did not violate the Fourth Amendment when he 

opened and viewed the four photographs, just as the government did not 

violate the Fourth Amendment when it examined and later tested the white 

10 We assume without deciding that Wilson had a legitimate expectation 

of privacy in the computer images at issue under the Fourth Amendment. 

We do not need to address the question of whether Google’s terms of service 

negated any reasonable expectation of privacy.
19

powder in Jacobsen. The DEA agent’s removal of the plastic bags and his 

visual inspection of their contents in Jacobsen enabled him to “learn nothing 

that had not previously been learned during the private search.” (Jacobsen, 

supra, 466 U.S. at p. 120.) Based on the FedEx employees’ testimony, it was 

virtually certain that the package contained nothing else of significance that 

the agents had not already learned from the private employees. The 

government was merely confirming the FedEx employees’ account regarding 

the suspected contents of the package. (Id. at p. 119.) Similarly, in this case, 

opening and viewing the four photographs merely enabled the government to 

confirm what Google had already conveyed through the Cybertip it generated 

after using its hashing technology—that the four images were suspected of 

constituting child pornography. The government did not further infringe on 

Wilson’s privacy, but rather guarded against the risk that Google’s report 

was wrong. (Ibid.) 

We acknowledge this case differs from Jacobsen insofar as the 

technology and procedures that were used by the parties. Unlike Jacobsen, 

where the FedEx employees visually observed and handed over the same 

white substance that was later tested by the government, in this case a 

Google employee did not contemporaneously view Wilson’s four photographs 

before sending them to NCMEC. But we conclude Jacobsen still applies 

despite these differences resulting from the use of Google’s hashing 

technology. A Google employee did review identical user content—which 

matched each of Wilson’s four images—although this review occurred at some 

point in the past rather than contemporaneously with the Cybertip report. A 

“digital fingerprint” was assigned to each of the four images, meaning that 

Wilson’s four images were identical to those in Google’s repository of hash 

values, and no hash values are stored in Google’s repository unless at least 
20

one Google employee has viewed the content and confirmed it constitutes 

apparent child pornography.11 Google did not turn over anything else other 

than the discrete set of four matching images attached to the Cybertip report; 

it did not include any larger “files” from which the images were extracted (if 

any) and it did not include any e-mail body text or header information 

associated with any of Wilson’s files. (Cf. Ackerman, supra, 831 F.3d at 

pp. 1305-1306 [government agent expanded AOL’s private party search 

because, in addition to opening the attachment that had been flagged as 

having a matching hash value, it also opened an e-mail and three other 

attachments that AOL had not opened or processed through its hash value 

system].) The government was merely reviewing what Google had already 

found, but in a different format—visually reviewing the photographs with the 

agent’s human eyes versus replicating the computer’s generation of a 

numerical algorithm. Because the assigned numerical values, or “digital 

fingerprints,” are representative of the contents depicted in the photographs 

themselves, the government gained no new material information by viewing 

11 Google explains that a comparison of these “digital fingerprints” allows 

it “to identify duplicate images of apparent child pornography to prevent 

them from continuing to circulate on [its] products.” (Italics added.) Other 

courts and commentators similarly describe hash matching as a highly 

accurate technology. (See, e.g., United States v. Reddick (5th Cir. 2018) 

900 F.3d 636, 639 (Reddick) [“[H]ash value comparison ‘allows law 

enforcement to identify child pornography with almost absolute certainty.’ ”]; 

Power of the Hash, supra, 119 Harv. L.Rev.F. at p. 39 [explaining hash 

algorithms are designed to be “uniquely associated with the input,” such that 

no two files will have matching values “except a file that is identical, bit-forbit”].) 
21

the images. The agent merely confirmed Google’s report that Wilson 

uploaded content constituting apparent child pornography.12 

In sum, the government’s warrantless search of Wilson’s four images 

was permissible under the private search doctrine. Google’s private search 

frustrated Wilson’s expectation of privacy in the files before they were viewed 

by the government. Google had already identified Wilson’s files as having 

matching hash values to images that had previously been viewed and 

identified by a Google employee as apparent child pornography. The 

government’s subsequent opening and viewing of the four photographs did 

not significantly expand on the search that had previously been conducted by 

Google. The agent’s actions in opening the files and viewing the images 

merely confirmed that the flagged files were child pornography, as reflected 

in Google’s Cybertip report.

D. Defendant’s Arguments Regarding the Private Search Doctrine

Wilson’s arguments against application of the private search doctrine 

are not persuasive. We address these arguments in turn. 

12 As previously noted, Jacobsen also separately discussed the 

government’s field test—concluding the testing of the white substance did not 

constitute a search within the meaning of the Fourth Amendment. 

(Jacobsen, supra, 466 U.S. at pp. 122-123.) Because the same cannot be said 

for the agent’s actions in opening and viewing Wilson’s digital images (i.e., 

these actions do constitute a search), this part of the Jacobsen decision does 

not directly apply here. To the extent it does apply, the Court’s reasoning 

further supports our conclusion that the government did not violate Wilson’s 

Fourth Amendment rights. Just as the chemical test could reveal whether 

the substance was cocaine, and no other arguably private fact, the agent’s 

visual observations here merely confirmed the presence or absence of 

suspected child pornography. The fact that the confirmation occurred 

through the use of the agent’s own eyes in this case, versus the chemical 

testing in Jacobsen, does not make the private search doctrine inapplicable. 
22

Wilson contends the private search doctrine does not apply at all 

because Google’s use of its hashing technology does not “qualify as a private 

search under the Fourth Amendment.” Wilson reasons that only humans can 

frustrate one another’s reasonable expectations of privacy and, because 

Google’s hashing process is automated and no human looked at Wilson’s 

e-mail attachments until the agents did, no private search occurred at all and 

Wilson’s privacy interests remained intact. We reject Wilson’s narrow view of 

the process employed by Google here. Wilson’s assertion that “[n]o human 

looked at [his] email attachments until the agents did,” and his related claim 

that Google employed a “machine scan with no human involvement,” does not 

accurately account for the multi-step process used by Google here. A 

computer program was used, but it did not occur without “human 

involvement” or “human participation.” As already discussed, Google trains 

employees who are responsible for identifying child pornography on its 

systems. No image is assigned a hash value and added to Google’s repository 

of hash values associated with apparent child pornography unless an 

employee first looks at the actual image and confirms its contents. If 

someone uploads content that is scanned and determined to have a matching 

hash value, a Google employee then takes that flagged image and submits it 

to NCMEC in the form of a Cybertip. In addition to flagging the file as 

suspected child pornography based on its matching hash value, Google 

classifies the file’s contents based on the initial employee review of an 

identical duplicate image. In some cases, a Google employee looks at the 

duplicate image before sending it to NCMEC. But in other cases, as here, a 

Google employee does not perform this redundant step. In either case, 

Google’s actions in reviewing, scanning, and flagging user content—and 

assigning hash values to users’ files—are properly viewed in their entirety as 
23

equivalent to a private search which frustrated any reasonable expectation of 

privacy in the subject files. (See Reddick, supra, 900 F.3d at p. 637 [a private 

company’s determination, using an automated computer program, that the 

hash values of defendant’s uploaded files corresponded to the hash values of 

known child pornography images, constituted a private search for Fourth 

Amendment purposes].)13 

Citing Riley v. California (2014) 573 U.S. 373 and Carpenter v. United 

States (2018) 138 S.Ct. 2206, Wilson next contends that the United States 

Supreme Court is unwilling to “extend established Fourth Amendment 

doctrines in the face of technological innovations that permit greater privacy 

intrusions.” In Riley, the Supreme Court held that a warrant is generally 

required before the police may search an arrestee’s cell phone incident to 

arrest. (Riley, at p. 401.) In Carpenter, the Court held that the Fourth 

Amendment required a warrant for the automated search of historical cell 

site location information covering an extended period of time. (Carpenter, at 

pp. 2217, 2221.) Both cases referenced privacy concerns implicated by 

emerging technology. (See Riley, at pp. 393-395 [explaining that cell phones 

have an “immense storage capacity,” which allows people to carry a “cache of 

sensitive personal information” with them]; Carpenter, at p. 2220 [explaining 

that, with cell site location information technology, the wireless carrier holds 

a “detailed chronicle of a person’s physical presence compiled every day, every 

moment, over several years”].) But neither case assists Wilson here. The 

13 Had the government itself engaged in this type of expansive review of 

user content (and in particular, a user’s e-mails) without a warrant, there is 

little doubt it would be considered a search under the Fourth Amendment. 

(See United States v. Warshak (6th Cir. 2010) 631 F.3d 266, 285-286 

[applying Fourth Amendment protection to e-mail contents]; see also Kyllo v. 

United States (2001) 533 U.S. 27, 40 [concluding that the use of a thermal 

imaging technology constituted an unlawful search].) 
24

present case does not involve the government’s use of technological 

advancements which pose a threat to a defendant’s Fourth Amendment 

rights. It involves a private search which does not implicate the Fourth 

Amendment at all. Even if we assume these cases suggest caution in 

applying the private search doctrine to digital devices such as cell phones or 

computers, we are not faced with that situation here. The government did 

not review evidence located on these types of devices. Google did not, for 

example, provide the government with access to all of Wilson’s electronic 

communications on his computer. Instead, the government viewed four 

discrete photographs that were attached to Google’s Cybertip. Wilson’s 

reliance on Riley and Carpenter is misplaced here. 

Wilson further contends the agent here significantly expanded on 

Google’s search. Wilson relies on the United States Supreme Court’s decision 

in Walter, and contends Jacobsen is inapposite. We disagree. In Walter, a 

private party mistakenly received a shipment containing several individual 

boxes of films with labels on the outside indicating the films contained 

obscene content. (Walter, supra, 447 U.S. at pp. 651-652 [explaining “one 

side of [the examined boxes contained] suggestive drawings, and on the other 

side were explicit descriptions of the contents”].) After one of the employees 

unsuccessfully attempted to view the films’ contents, the private party 

contacted the Federal Bureau of Investigation (FBI) to retrieve the shipment. 

(Id. at p. 652.) The FBI agents viewed the films with a projector without 

obtaining a warrant. (Ibid.) In a plurality opinion, the Court held that the 

government’s search violated the Fourth Amendment, explaining that “[t]he 

projection of the films was a significant expansion of the search that had been 

conducted previously by a private party.” (Id. at pp. 657-658.) 
25

Wilson contends Google’s use of its hashing technology “was not 

materially different than reading the descriptive material on [the] film boxes”

in Walter. This case is distinguishable. In Walter, prior to the FBI’s 

screening of the films, the agents “could only draw inferences about what was 

on the films” based solely on the labels. (Walter, supra, 447 U.S. at p. 657.) 

The private party attempted to, but could not, view what was inside. (Id. at 

p. 652.) Here, the digital fingerprints associated with Wilson’s files convey 

that the information in the four images is exactly the same as what was 

previously viewed by a Google employee. The hash value therefore is not like 

the labels or pictures on the boxes in Walter. The situation would be 

different, and Walter would likely control, if Google and the government here 

had relied on file names associated with the four images suggestive of child 

pornography. But Google’s hashing technology employs a much more 

sophisticated, multi-tiered process, matching files on its services only against 

hash values for images that have already been identified as apparent child 

pornography by its employees. Unlike the private party in Walter, Google 

used a reliable and accurate method of identifying the actual contents of the 

files that were provided to the government—all four files were duplicates of 

images that a Google employee previously reviewed and identified as 

apparent child pornography. 

Wilson also attempts to distinguish Jacobsen by pointing out that 

Google may have previously identified the subject images incorrectly: “a 

hash match involves origination subjectivity and does not provide a ‘virtual 

certainty’ that the suspect file is necessarily an image that has been 

previously correctly identified as child pornography.” We are not persuaded 

by Wilson’s attempt to distinguish Jacobsen on these grounds. There is no 

evidence in the record that Google’s initial identification of apparent child 
26

pornography, and the associated hash value calculation, was erroneous. 

Even if some level of subjectivity is involved when a Google employee 

identifies suspected child pornography, that does not mean the private search 

doctrine does not apply. The Court in Jacobsen made clear that the DEA 

agents could rely on the testimony of the FedEx employees, and that they 

could also confirm the employees’ conclusions based on their private 

observations—and thereby guard against any errors or “flaw[s] in the 

employees’ recollection”—by viewing the contents of the container 

themselves. (Jacobsen, supra, 466 U.S. at p. 119.) The private search 

doctrine does not require perfection in the information conveyed by a private 

party. Unlike Walter, the government relied on much more than a mere label 

in this case. Like Jacobsen, where “the suspicious nature of the material 

made it virtually certain that the substance tested was in fact contraband” 

(id. at p. 125), the suspicious nature of the images was evident based on 

Google’s hashing technology. Before opening the four images, the 

government could not be one hundred percent certain the Google employee 

who previously viewed the four images was not mistaken about what was 

depicted in the pictures. But that possibility of error exists in all cases under 

the private search doctrine—there is some chance that the private party is 

conveying inaccurate information. In this case, however, it was reasonable 

for the government to conclude that the images were contraband based on the 

hashing process, the A1 designations associated with each of the four files, 

and the agent’s own knowledge and training as a member of the ICAC task 
27

force.14 (Cf. United States v. Runyan (5th Cir. 2001) 275 F.3d 449, 463 

[concluding that “police exceed the scope of a prior private search when they 

examine a closed container that was not opened by the private searchers 

unless the police are already substantially certain of what is inside that 

container based on the statements of the private searchers, their replication 

of the private search, and their expertise”].) 

Wilson also cites United States v. Keith (D.Mass. 2013) 980 F.Supp.2d 

33, which dealt with a similar hash matching process and concluded that 

NCMEC, acting as a government agent, expanded on a private search by 

opening and viewing electronic files forwarded to it by a private internet 

service provider. (Id. at pp. 41, 43.) The court concluded Jacobsen was 

inapposite because, in that case, “the subsequent DEA search provided no 

more information than had already been exposed by the initial FedEx 

search.” (Id. at p. 43.) By contrast, the court reasoned that more information 

can be obtained from viewing a file’s contents: “That is surely why a 

CyberTipline analyst opens the file to view it, because the actual viewing of 

the contents provides information additional to the information provided by 

the hash match.” (Ibid.) But examining an item more closely and learning 

some additional details is not incompatible with applying the private search 

doctrine; the question is “the degree to which [the additional intrusions] 

exceeded the scope of the private search.” (Jacobsen, supra, 466 U.S. at 

14 Wilson also argues that “the hash match cannot provide the same 

virtual certainty as [the] chemical test” in Jacobsen, but that is not the 

proper benchmark because the private party in Jacobsen did not perform the 

chemical test. A more appropriate comparison would be to the FedEx 

employees’ visual observations of the contents of the container and the white 

substance. Google’s extensive hash matching process provides even more 

information than those visual observations and inferences drawn from how 

the white substance was packaged. 
28

p. 115.) Moreover, the fact that the agent learned more from his review of 

the pictures compared to his review of the numerical algorithm is not 

dispositive because the proper question is whether this additional knowledge 

exceeded the scope of the private party’s search. As we have already 

discussed, the private party in this case did know all of the same details 

based on the prior visual review of the identical images by a Google employee

and the government’s search did not exceed the private search. (See Reddick, 

supra, 900 F.3d at pp. 638-639 [a detective did not expand the scope of 

Microsoft’s private search; applying Jacobsen, the court concluded that 

“opening the file merely confirmed that the flagged file was indeed child 

pornography, as suspected” after Microsoft scanned the defendant’s files and 

determined the image file’s hash value was identical to the hash value of 

known child pornography]; United States v. Miller (E.D. Ky. 2017) 2017 WL 

2705963, at *7 [“Google’s hash-value matching . . . does not reveal anything 

about an image that Google does not already know from the regular eyes of 

its employees. Put another way, hashing is not a futuristic substitute for a 

private search—it is merely a sophisticated way of confirming that Google 
29

already conducted a private search.”].)15 In addition, in Keith and unlike 

here, it was not clear who performed the initial private search. The court 

noted it was “possible that the hash value of a suspect file was initially 

generated by another provider and then shared with AOL.” (Keith, at p. 37, 

fn. 2; see also id. at p. 43 [“the provenance of that designation [of the original 

file as child pornography] is unknown”].) By contrast, “[n]o hash is added to 

[Google’s] repository without the corresponding image first having been 

visually confirmed by a Google employee to be apparent child pornography.” 

Finally, Wilson contends he can establish a violation of his Fourth 

Amendment rights based on a trespass theory, irrespective of whether his 

privacy interests were invaded. The government violates the Fourth 

Amendment by either infringing on a defendant’s constitutionally protected 

expectation of privacy (Katz v. United States (1967) 389 U.S. 347, 351-353; id. 

at p. 361 (Harlan, J., concurring)), or by physically intruding (trespassing) on 

a defendant’s property to obtain information (United States v. Jones (2012) 

565 U.S. 400, 404-411). But as previously discussed, it was a private party, 

not the government, who searched and seized Wilson’s property. The 

15 Although the government could learn some details previously unknown 

to it, there is no likelihood that the government would learn something else of 

significance under the Fourth Amendment—i.e., a private fact in which a 

reasonable expectation of privacy remains—when it viewed the four images 

of child pornography following Google’s extensive, multi-step hashing process. 

(Cf. United States v. Lichtenberger (6th Cir. 2015) 786 F.3d 478, 488-489 

[“[N]ot only was there no virtual certainty that [the officer’s] review [of a 

laptop computer] was limited to the photographs from [the private party’s] 

earlier search, there was a very real possibility [the officer] exceeded the 

scope of [the private] search and that he could have discovered something else

on [defendant’s] laptop that was private, legal, and unrelated to the 

allegations prompting the search—precisely the sort of discovery the 

Jacobsen Court sought to avoid in articulating its beyond-the-scope test.”], 

italics added.) 
30

government merely viewed what the private party had turned over through a 

private Cybertip. The Fourth Amendment only prohibits governmental 

action. Wilson provides no sound basis for finding a Fourth Amendment 

violation under these circumstances, even if Google’s search can be 

characterized as an unlawful trespass, a physical intrusion on defendant’s 

property interests, or any other type of wrongful conduct. (See Walter, supra, 

447 U.S. at p. 656 [“a wrongful search or seizure conducted by a private party 

does not violate the Fourth Amendment and . . . such private wrongdoing 

does not deprive the government of the right to use evidence that it has 

acquired lawfully”]; Jacobsen, supra, 466 U.S. at pp. 114, 119 [finding that 

the DEA agent’s “viewing of what a private party had freely made available 

for his inspection did not violate the Fourth Amendment,” even though the 

private actor’s conduct “might have been impermissible for a government 

agent”]; People v. Otto (1992) 2 Cal.4th 1088, 1112 [the exclusionary rule 

“does not preclude the state from using the fruits of illegal searches and 

seizures by private citizens”]; People v. Wilkinson (2008) 163 Cal.App.4th 

1554, 1564 [“[t]he Fourth Amendment’s prohibition against unreasonable 

searches and seizures does not apply to searches by private citizens, even if 

the private citizens act unlawfully, unless the private citizen can be said to be 

acting as an agent for the government”].)

II.

Sufficiency of the Evidence: Section 288(a)

Wilson contends the evidence does not support the jury’s verdict finding 

him guilty of Counts Two, Three, and Four, for which he was charged with 

aiding and abetting, or conspiring to commit, J.A.’s lewd and lascivious acts 

on her daughter and cousin in violation of section 288, subdivision (a) because 

J.A. did not harbor the requisite sexual intent. We disagree. 
31

“Our task is clear. ‘On appeal we review the whole record in the light 

most favorable to the judgment to determine whether it discloses substantial 

evidence—that is, evidence that is reasonable, credible, and of solid value—

from which a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507.) 

“In applying this test, we review the evidence in the light most 

favorable to the prosecution and presume in support of the judgment the 

existence of every fact the jury could reasonably have deduced from the 

evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to 

justifiable suspicion do not justify the reversal of a judgment, for it is the 

exclusive province of the trial judge or jury to determine the credibility of a 

witness and the truth or falsity of the facts upon which a determination 

depends. [Citation.] We resolve neither credibility issues nor evidentiary 

conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal 

for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support” ’ the 

jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Both parties agree that for the jury to convict Wilson of committing 

lewd and lascivious acts on a child under the age of 14 on the theory that he 

aided or abetted, or conspired with, J.A. when she committed those acts, the 

jury was required to find that J.A., as the principal perpetrator, touched the 

children “with the intent of arousing, appealing to, or gratifying the lust, 

passions, or sexual desires of [herself] or the child.” (§ 288, subd. (a).) This 

element is the only element which Wilson contends was not supported by 

sufficient evidence.

For purposes of this appeal, Wilson does not contend that J.A. did not 

touch the children, but only that the evidence did not support the jury’s 
32

conclusion that she did so with the requisite intent. Wilson argues J.A. did 

not lust after her infant daughter and young cousin and touch them with the 

aim of satisfying her own sexual desires, but rather that the evidence 

established that she touched the children only because Wilson paid her to do 

so and she was desperate for money. 

“Regarding a specific intent element of a crime, [our Supreme Court 

has] explained that ‘[e]vidence of a defendant’s state of mind is almost 

inevitably circumstantial, but circumstantial evidence is as sufficient as 

direct evidence to support a conviction.’ [Citation.] Moreover, the standard 

of review that applies to insufficient evidence claims involving circumstantial 

evidence is the same as the standard of review that applies to claims 

involving direct evidence. ‘We “must accept logical inferences that the jury 

might have drawn from the circumstantial evidence. [Citation.]” [Citation.] 

“Although it is the jury’s duty to acquit a defendant if it finds the 

circumstantial evidence susceptible of two reasonable interpretations, one of 

which suggests guilt and the other innocence, it is the jury, not the appellate 

court that must be convinced of the defendant’s guilt beyond a reasonable 

doubt. [Citation.]” [Citation.] Where the circumstances reasonably justify 

the trier of fact’s findings, a reviewing court’s conclusion the circumstances 

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

the judgment’s reversal.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

To sustain a conviction under section 288, subdivision (a), the 

prosecution must present evidence regarding the intent of the person 

touching the minor. “As the vast majority of courts have long recognized, the 

only way to determine whether a particular touching is permitted or 

prohibited is by reference to the actor’s intent as inferred from all the 

circumstances.” (People v. Martinez (1995) 11 Cal.4th 434, 450.) Convictions 
33

under section 288, subdivision (a) “have been obtained and upheld only where 

the defendant’s lustful intent was manifest under the particular 

circumstances. In all cases arising under the statute, the People are required 

to prove that the defendant touched the child in order to obtain immediate 

sexual gratification.” (Martinez, at p. 452.) “Of course, the manner of 

touching is not irrelevant under this view. ‘[T]he trier of fact looks to all the 

circumstances, including the charged act, to determine whether it was 

performed with the required specific intent.’ [Citations.] Other relevant 

factors can include the defendant’s extrajudicial statements [citation], other 

acts of lewd conduct admitted or charged in the case [citations], the 

relationship of the parties [citation], and any coercion, bribery, or deceit used 

to obtain the victim’s cooperation or avoid detection [citation].” (Id. at 

p. 445.)

With these principles in mind, we conclude the evidence supports 

Wilson’s conviction on the theory that J.A. harbored the requisite sexual 

intent when she touched the girls. Viewed in the light most favorable to the 

prosecution, the evidence shows that J.A. touched the girls, including orally 

copulating her daughter, to satisfy her lust, passion, and sexual desire 

directed toward young girls. As she admitted, there was no medical reason 

for touching the girls. She also admitted she knew that what she was doing 

was “wrong” and that she “sinned” when she touched the girls, reasonably 

supporting the inference that she understood her feelings toward the girls 

were lewd and lascivious. During the time period in which she was touching 

the girls, she never objected to Wilson’s sexualized comments regarding 

young girls and even participated in watching child pornography with 

Wilson. J.A. did not reject Wilson’s proposals. And she did not merely accept 

Wilson’s proposal to perform oral copulation on two young girls; she 
34

responded by laughing and asking to “do [it] ASAP.” When Wilson showed 

her photos of a young girl that he wanted her to sexually abuse, J.A. did not 

react with disgust, but instead expressed she found the girl to be “soo small 

and cute lol.” This evidence, viewed in the light most favorable to the jury’s 

verdict, supports the conclusion that J.A. touched the girls to obtain her own 

immediate sexual gratification.

Additionally, as the prosecution argued in opposition to Wilson’s 

pretrial motion to set aside the information, the evidence established that 

J.A. participated in “ ‘non-mainstream’ ” sexual activities, supporting an 

inference that she would also participate in “ ‘non-mainstream’ ” child 

molestation. 

On appeal, Wilson points to J.A.’s own statements that she had no 

sexual intent when she touched the girls. He also points to other evidence in

the record suggesting she had no sexual interest in young girls because the 

incidents giving rise to the offenses here were isolated incidents tied to her 

need for money and she never lewdly touched any other minors. However, it 

is not this court’s role on appeal to reweigh the evidence, resolve conflicts in 

the evidence, or make our own credibility determinations. (See, e.g., People v. 

Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314

(Jones).) The jury rejected J.A.’s self-serving statements denying her sexual 

interest in children despite the evidence to the contrary and we must accept 

that determination. Considered as a whole, the evidence supports the jury’s 

verdict.

III.

Wilson’s Due Process Right to Notice of the Nature of the Charges

Wilson contends his due process right to notice of the charges against 

him was violated when J.A. changed her testimony after the preliminary 
35

hearing regarding the timing and contents of the photos she sent to Wilson 

and which formed the basis for the charges against him. He asserts that 

J.A.’s changing testimony between the preliminary hearing and trial 

deprived him of adequate notice of the charges against him. 

A. Additional Background

At the preliminary hearing, J.A. testified that she believed the videos of 

her touching her daughter’s buttocks and orally copulating her daughter were 

filmed and sent to Wilson on July 17, 2014. J.A. additionally testified that 

she could not remember when she took the photo of her cousin and sent it to 

Wilson, but that it occurred before the incidents involving videos of her 

daughter. 

The information filed after the preliminary hearing alleged that all acts 

underlying the offenses occurred “between January 1, 2014 and August 20, 

2015.” 

At trial, J.A. changed her testimony to now reflect her understanding 

that the girl in the July 17, 2014 video was her cousin, not her daughter. She 

admitted that she met with the prosecution immediately before trial and 

realized that the girl in the July video was not wearing a diaper, meaning it 

could not be her infant daughter. She further testified that the videos 

depicting her daughter were filmed and sent to Wilson in December 2014. 

Concerned with this change in testimony and the apparent lack of evidence to 

support the change, Wilson moved for a mistrial. The trial court denied the 

motion. 

B. Analysis

In Jones, supra, 51 Cal.3d 294, another child molestation case, the 

Supreme Court considered “the extent to which the defendant’s due process 

rights are implicated by the inability of his young accuser to give specific 
36

details regarding the time, place and circumstances of various alleged 

assaults.” (Id. at p. 299.) As the court explained, “[t]he ‘preeminent’ due 

process principle is that one accused of a crime must be ‘informed of the 

nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process 

of law requires that an accused be advised of the charges against him so that 

he has a reasonable opportunity to prepare and present his defense and not 

be taken by surprise by evidence offered at his trial.” (Id. at p. 317.) 

When a case is initiated with the filing of an information, the defendant 

is afforded “ ‘practical notice of the criminal acts against which he must 

defend’ ” primarily by way of the preliminary hearing transcript. (Jones, 

supra, 51 Cal.3d at p. 317.) A defendant’s right to notice does not encompass 

“notice of the specific time or place of an offense, so long as it occurred within 

the applicable limitation period.” (Ibid., italics added.) “ ‘[A]t a minimum, a 

defendant must be prepared to defend against all offenses of the kind alleged 

in the information as are shown by evidence at the preliminary hearing to 

have occurred within the timeframe pleaded in the information.’ ” (Ibid.,

quoting People v. Gordon (1985) 165 Cal.App.3d 839, 870-871.)

Here, the information alleged that all offenses occurred between 

January 1, 2014, and August 20, 2015. The information also specifically 

alleged that Wilson, through J.A., committed the specific acts of (1) orally 

copulating J.A.’s daughter and lewdly touching her vagina; (2) touching her 

buttocks; and (3) touching the buttocks of J.A.’s cousin. Although J.A. 

repeatedly stated she could not recall specific dates, the evidence at the 

preliminary hearing and at trial was consistent with the dates in the 

information and consistent with the acts described in the information and at 

trial against the same victims. 
37

Wilson compares this case to People v. Ochoa (2016) 2 Cal.App.5th 

1227, in which the appellate court held that when the information alleged 

defendant committed the offenses against one victim, the prosecution could 

not seek his conviction at trial based on evidence that the offense was instead 

committed against a different victim. (Id. at pp. 1231-1232.) Doing so, the 

court reasoned, would violate the defendant’s due process right to notice of 

the charges against him. (Id. at p. 1232.)

Here, unlike Ochoa, the allegations in the information and the 

testimony at the preliminary hearing were consistent with the evidence at 

trial regarding the identity of Wilson’s victims and the offenses committed 

against them. At most, J.A.’s testimony differed on the specific dates on 

which the offenses were committed, but those dates remained within the time 

period alleged in the information. Variances between the preliminary 

hearing testimony and trial testimony regarding the time at which specific 

acts occurred are not material and do not deprive a defendant of adequate 

notice. (People v. Calhoun (2019) 38 Cal.App.5th 275, 306-309.) Accordingly, 

Wilson’s contentions to the contrary have no merit.16

16 Shortly before oral argument, Wilson submitted a notice of new 

authority pursuant to rule 8.254 of the California Rules of Court. In his 

notice, Wilson suggests that the recent decision in People v. Hughes (2020) 

50 Cal.App.5th 257 supports his claim that his due process right to notice 

was violated. However, Hughes did not directly address the defendant’s due 

process right to notice, but rather involved the prosecution’s duties under 

section 1054 et seq. to disclose information and materials related to an expert 

witness’s testimony before trial. (Hughes, at pp. 278-279.) Accordingly, the 

decision in Hughes does not change our opinion in this case.
38

IV.

False Evidence

Wilson argues that the prosecution knowingly adduced false testimony 

at trial to support its framing of the case. He contends that the prosecution 

argued to the jury that Wilson “groomed” the sisters by starting with 

innocuous photo shoots and slowly progressing to asking them to perform 

sexual acts. Wilson asserts this framing was only possible because of the 

false testimony by J.A. and her sister regarding their first photo shoot 

together. 

As Wilson asserts, J.A. testified she never participated in a photo shoot 

in lingerie with her sister, who in turn testified that she did participate in 

such a photo shoot with J.A., but it occurred at least a year after the initial, 

fully-clothed photo shoot with both sisters. In his motion for a new trial, 

Wilson presented evidence that the sisters posed in lingerie the same day as 

their initial photo shoot and soon thereafter posed several times in 

increasingly risqué photo shoots. 

The trial court denied the motion for new trial, finding that the 

evidence suggested the sister merely could not remember details, that the 

evidence to the contrary was available to Wilson before trial, and that any 

error was harmless because such evidence was not material. 

As the Attorney General acknowledges on appeal, “[a] criminal 

judgment obtained through use of false evidence violates due process, 

whether the prosecution solicits the false evidence or simply allows it to go 

uncorrected when it appears.” (Campbell v. Superior Court (2008) 

159 Cal.App.4th 635, 652.) The prosecution may not knowingly present false 

evidence and must correct testimony “that it knows, or should know, is false 

or misleading.” (People v. Morrison (2004) 34 Cal.4th 698, 716.)
39

Wilson, however, offers nothing more than speculation that the sisters 

knowingly committed perjury or that the prosecution knew their testimony 

was false. As both sisters frequently testified, they admittedly could not 

remember the exact sequence of the numerous photo shoots that had taken 

place years earlier and had actively tried to forget what they had done with 

Wilson. The plain impression of their testimony suggests that given the 

sheer multitude of photo shoots, the sisters could not remember some of the 

specific events and their timing, not that they were intentionally offering 

false testimony. Given this topic was not a central element of the offenses, 

the record likewise does not establish the prosecution knowingly adduced this 

testimony or failed to correct it despite its knowledge of its falsity.

Moreover, even assuming some error, Wilson does not establish he was 

prejudiced. A conviction premised on false evidence is reversible only when 

the defendant shows that if such evidence were not introduced, it is 

reasonably probable that the jury would have reached a different result. 

(See, e.g., In re Roberts (2003) 29 Cal.4th 726, 742.)

Wilson does not meet his burden. Given the overwhelming evidence at 

trial regarding Wilson’s treatment of the sisters, any discrepancy in the 

precise sequence of their earlier photo shoots was immaterial and it is not 

reasonably probable that if the jury was aware of the true sequence of photo 

shoots, it would have concluded that Wilson did not aid and abet the touching 

of the young girls. On appeal, Wilson contends that J.A.’s false testimony 

regarding the early photo shoots was part of her effort to rehabilitate her own 

image and “lay blame on [Wilson] for the molests of her daughter and 

[cousin].” However, even accepting this framing, J.A. failed to rehabilitate 

her image regardless of her testimony regarding the early photo shoots. As 

discussed ante, the jury did not believe J.A.’s testimony regarding her own 
40

sexual desires for her daughter and cousin and suggestion that she was 

merely Wilson’s unwitting pawn. In light of the jury’s disregard for other 

portions of J.A.’s testimony aimed at evading responsibility, it is unlikely that 

more information regarding her participation in the early risqué photo shoots 

would have led to a different result as to Wilson. Accordingly, there is no 

basis for reversal in this regard.

V.

Brady Error

In an argument related to his claim regarding false evidence, Wilson 

contends the prosecution failed to disclose photos in its possession depicting 

the early “sexually charged photo shoots” with both sisters, which could have 

been used at trial to impeach their testimony that no such photo shoot 

occurred. Wilson contends this failure to disclose the photos stored on hard 

drives seized from him violated the prosecution’s duties under Brady, supra,

373 U.S. 83. 

Wilson raised this claim at trial after the sisters completed their 

testimony. He asked the court to order the prosecution to turn over any 

photos in its possession depicting either of the sisters. The prosecutor 

informed the court that he had offered to provide those photos to Wilson’s 

counsel months before trial, but defense counsel declined. Wilson’s counsel 

admitted that he declined the offer, but told the court that given the sister’s 

unexpected testimony he thought the photos were now relevant. The court 

accepted the prosecution’s consent to providing the photos as soon as possible. 

However, at the end of the last day of testimony at trial, the prosecution 

informed the court that it learned it would take at least a week to obtain the 

photos given the complex standards for copying and producing such sensitive 

files. Defense counsel suggested he needed to review the files before the trial 
41

concluded to preserve Wilson’s rights to a fair trial, but the court denied the 

request. The court noted that any deprivation in this regard was the fault of 

defense counsel, who declined the prosecution’s offer to disclose the material 

over a month before trial. Wilson later raised the same issue in his motion 

for new trial, which the trial court likewise denied. The trial court explained 

that this photographic evidence “was not exculpatory evidence, at best it 

impeached [the sisters] on a minor point.” Finding the evidence had been 

offered to Wilson before trial, the court ultimately concluded that Wilson was 

not prejudiced because “[i]t is not reasonably probable that the result would 

have been different had the evidence been disclosed.” 

We agree with the trial court. Under Brady, the prosecution has the 

obligation to disclose to the defense all material exculpatory evidence. 

(Brady, supra, 373 U.S. at p. 87.) “There are three components of a true 

Brady violation: The evidence at issue must be favorable to the accused, 

either because it is exculpatory, or because it is impeaching; that evidence 

must have been suppressed by the State, either willfully or inadvertently; 

and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 

281-282; see also People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 

710.) A defendant establishes prejudice by showing the evidence was 

material, i.e., if the evidence had been disclosed, there is a reasonable 

probability that the result of the trial would have been different. (People v. 

Jenkins (2000) 22 Cal.4th 900, 954.)

On appeal, we review a claim of Brady error de novo “but give great 

weight to any trial court findings of fact that are supported by substantial 

evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)

Here, Wilson fails to establish that the evidence was suppressed by the 

government. Before trial, the prosecution offered the photos to Wilson’s 
42

counsel, but he declined to review them. Moreover, even assuming the 

prosecution had some duty to produce the photos despite defense counsel’s 

disinterest, Wilson fails to demonstrate the requisite prejudice because the 

photos were not material. As discussed ante regarding the same evidence, 

the minor issue regarding the sequence of the early photo shoots was not a 

central element of the prosecution’s case, even if we focus, as Wilson requests, 

on the “grooming theory” of Wilson’s liability. If Wilson obtained the photos 

to use as impeachment evidence at trial, he would have merely shown that 

the sisters had imperfect recollection of their past interactions with Wilson. 

Regardless of the sequence of events not directly related to the charged 

offenses, it is not reasonably probable that the jury would have reached a 

different result if it heard impeachment evidence on this issue. Thus, we 

conclude there was no Brady error requiring reversal. 

Wilson alternatively argues that his counsel’s failure to obtain the 

photos before trial constitutes ineffective assistance of counsel. Like the 

standard for Brady error, an appellant asserting his counsel was ineffective 

must show a deficient performance and that absent the alleged 

ineffectiveness, there is a reasonable probability of a more favorable result. 

(People v. Waidla (2000) 22 Cal.4th 690, 718.) For the same reasons 

discussed ante, we conclude there was no such prejudice even assuming 

counsel’s performance was deficient.

VI.

Instructional Error

Wilson raises four claims regarding jury instructions. He contends the 

court erred in failing to give two additional instructions regarding unanimity 

and conspiracy, a set of instructions was unduly prejudicial, and the court’s 

response to a jury question misconstrued the law. 
43

A. Unanimity Instruction

Wilson alleges the trial court had a duty to provide a unanimity 

instruction to the jury. We disagree. 

Wilson contends that J.A.’s testimony presented multiple instances 

that could separately support the charged offenses because she testified she 

touched the girls on multiple occasions. According to Wilson, in light of the 

possibility that the jurors relied on separate instances to support their 

verdict, the court erred in not instructing the jury that it must unanimously 

agree on the same specific act as supporting its verdict as to each offense. 

The Attorney General does not dispute that the jury’s verdict must be 

unanimous, but contends no unanimity instruction was required here.17 A

criminal defendant has a constitutional right to a unanimous jury. (See, e.g., 

People v. Russo (2001) 25 Cal.4th 1124, 1132.) “To protect this right, ‘if one 

criminal act is charged, but the evidence tends to show the commission of 

more than one such act, “either the prosecution must elect the specific act 

relied upon to prove the charge to the jury, or the court must instruct the jury 

that it must unanimously agree that the defendant committed the same 

specific criminal act.” [Citations.]’ (People v. Napoles (2002) 104 Cal.App.4th 

108, 114.)” (People v. Brown (2017) 11 Cal.App.5th 332, 341 (Brown).)

As Wilson notes, the jury heard evidence tending to show the 

commission of more than one act that could support some of the charged 

17 In his notice of new authority, Wilson also cites the Supreme Court’s 

recent decision in Ramos v. Louisiana (2020) ___ U.S. ___ [140 S.Ct. 1390, 

206 L.Ed.2d 583], which held that the Sixth Amendment’s unanimity 

requirement applies to criminal trials in state courts. Given California’s 

existing requirement of a unanimous verdict, the Supreme Court’s decision 

has no direct effect on California and does not change our analysis. Nothing 

in Ramos suggests that a unanimity instruction was required in this case 

under the factual circumstances we discuss post.
44

offenses. This, however, does not necessarily mean a unanimity instruction 

was required. As the Brown court explained, the presentation of evidence 

showing the commission of more than one act supporting a charged offense 

creates the requirement of either a unanimity instruction or the 

“ ‘prosecution must elect the specific act relied upon to prove the charge to the 

jury.’ ” (Brown, supra, 11 Cal.App.5th at p. 341.) “The prosecution can make 

an election by ‘tying each specific count to specific criminal acts elicited from 

the victims’ testimony’—typically in opening statement and/or closing 

argument. [Citations.] Such an election removes the need for a unanimity 

instruction. [Citation.] [¶] Under these principles, there is an implicit 

presumption that the jury will rely on the prosecution’s election and, indeed, 

is bound by it.” (Ibid.) 

Here, the prosecution made such an election in closing argument. The 

prosecution expressly claimed that the first two counts were premised on 

J.A.’s oral copulation of her daughter in December. Similarly, the 

prosecution argued that Counts Three and Four were premised on the 

specific acts of touching the two girls in the incidents where J.A. sent the 

photographs and videos to Wilson. Although J.A. suggested she touched her 

cousin on a different occasion, the prosecution expressly did not seek to 

establish Wilson’s guilt on an incident in which there was no photograph or 

video shown at trial. By making such an election, the prosecution negated 

the need for a unanimity instruction. (Brown, supra, 11 Cal.App.5th at 

p. 341.) Thus, Wilson’s claim to the contrary has no merit.

B. Conspiracy Instructions

Wilson asserts the trial court had a sua sponte duty to give a jury 

instruction clarifying that Wilson was not responsible for J.A.’s acts before he 

joined the alleged conspiracy. As Wilson notes, “[a] conspirator cannot be 
45

held liable for a substantive offense committed pursuant to the conspiracy if 

the offense was committed before he joined the conspiracy.” (People v. Marks 

(1988) 45 Cal.3d 1335, 1345.) On this point, Wilson contends the court 

should have instructed the jury with CALCRIM No. 419, which provides: 

“(The/A) defendant is not responsible for any acts that were done before (he/ 

[or] she) joined the conspiracy. [¶] You may consider evidence of acts or 

statements made before the defendant joined the conspiracy only to show the 

nature and goals of the conspiracy. You may not consider any such evidence 

to prove that the defendant is guilty of any crimes committed before (he/ [or] 

she) joined the conspiracy.” 

“A trial court’s duty to instruct, sua sponte, on particular defenses 

arises ‘ “only if it appears that the defendant is relying on such a defense, or 

if there is substantial evidence supportive of such a defense and the defense 

is not inconsistent with the defendant’s theory of the case.” ’ ” (People v. 

Maury (2003) 30 Cal.4th 342, 424.)

Wilson contends on appeal that his central defense falls under this 

instruction and there was “substantial evidence the charged acts occurred 

before [Wilson] joined any conspiracy or aided and abetted the charged 

crimes.” This contention on appeal, however, is belied by the evidence at 

trial.

As Wilson did not testify at trial and offered no affirmative evidence in 

defense, his opening brief on appeal relies primarily on his counsel’s closing 

argument to claim there was evidence he did not join the conspiracy until 

after J.A. committed the acts. As the jury was instructed, however, the 

arguments of counsel are not evidence. 

At most, Wilson points to an e-mail introduced at trial in which he told 

another woman that J.A. sent him a video with her daughter as a surprise 
46

and “ ‘I didn’t even ask for it.’ ” This evidence, however, does not support his 

contention on appeal that he joined the conspiracy with J.A. after she 

performed her criminal act. Rather, it supports his central defense that there 

was no conspiracy at any time. 

Wilson’s chief defense at trial was that the prosecution failed to show 

that he solicited the photos and videos such that there was no conspiracy or 

aiding and abetting. Following his statement to the other woman in the 

e-mail, he asserted J.A. sent him the photos and videos on her own initiative 

and her evidence to the contrary was not unequivocally supported by the 

record of their communications.

In accordance with this defense, the jury was properly instructed on the 

elements of conspiracy, including, inter alia, the requirement that Wilson 

agreed with J.A. to commit the offenses. In contrast to his defense that he 

never joined the conspiracy, no evidence at trial suggested Wilson did join the 

conspiracy, but only did so after J.A. had already committed any acts 

underlying the charged offenses. Thus, an additional instruction was not 

warranted in this regard.

Regardless, we conclude that even if the trial court had a sua sponte 

duty to instruct the jury with CALCRIM No. 419, and even if that error 

constituted misinstruction on the elements of an offense, the error was 

harmless beyond a reasonable doubt. (Chapman v. California (1967) 

386 U.S. 18, 24.) The conspiracy instructions that were given clearly 

informed the jury that Wilson’s culpability required an agreement to commit 

the offenses before J.A. committed the acts, which the evidence undisputedly 

showed J.A. did commit. The evidence also established that Wilson 

repeatedly made “proposals” to J.A. to pay her to perform the acts, record 
47

them, and send him copies of the resulting photos and videos. In the absence 

of any evidence to the contrary, there was no prejudicial error. 

C. Instructions Regarding Evidence of Other Crimes

At trial, the prosecution presented evidence regarding uncharged 

criminal offenses. The prosecution relied on this evidence of similar yet 

uncharged crimes to prove Wilson’s propensity to commit the charged 

offenses. (See, e.g., Evid. Code, § 1108; People v. Villatoro (2012) 54 Cal.4th 

1152, 1159-1166.) The court instructed the jury that “The People presented 

evidence that the defendant” committed these uncharged offenses, which if 

proven by a preponderance of the evidence, could be considered “for the 

limited purpose of deciding whether the defendant acted” with the requisite 

intent for the charged offenses. 

The court repeated the phrase, “The people presented evidence that the 

defendant” committed criminal offenses, multiple times in succession. As 

Wilson concedes on appeal, he did not object to these instructions. However, 

asserting the issue is not forfeited, he contends that the repetition of the 

phrasing that the prosecution “presented evidence that the defendant” 

committed offenses improperly signaled to the jury that the court was giving 

an opinion that the evidence established that Wilson did indeed commit the 

referenced offenses. 

We reject Wilson’s claim of alleged prejudice. Standard jury 

instructions regarding the use of uncharged offenses to establish intent 

include the introductory phrase that Wilson challenges here. (See, e.g., 

CALCRIM Nos. 375, 852A, 852B, 1191A, 2840.) An instruction simply 

stating that the prosecution “presented evidence” that the defendant 

committed a crime is not synonymous with stating the evidence is credible or 

that the defendant did indeed commit the crime. The given jury instructions 
48

properly informed the jury of its role in evaluating whether the evidence was 

sufficient to establish Wilson’s guilt. The jury was properly instructed that it 

had the duty to decide “what the facts are,” that Wilson is presumed to be 

innocent, and that the prosecution must prove Wilson’s guilt beyond a 

reasonable doubt. Considering the totality of the instructions, we conclude 

that the instructions did not mislead the jury or otherwise suggest to the jury 

that the court had determined Wilson was guilty. (See, e.g., People v. 

Reliford (2003) 29 Cal.4th 1007, 1013 [“[W]e must view a challenged portion 

‘in the context of the instructions as a whole and the trial record’ to 

determine ‘ “whether there is a reasonable likelihood that the jury has 

applied the challenged instruction in a way” that violates the 

Constitution.’ ”].)

D. Response to Jury Question Regarding J.A.’s Sexual Intent

Wilson contends the court erred in answering a jury question regarding 

the element of J.A.’s intent for the section 288, subdivision (a) offenses. The 

jury was correctly instructed that the People had to prove that J.A. 

“committed the act with the intent of arousing, appealing to, or gratifying the 

lust, passions, or sexual desires of herself or the child.” 

As discussed ante, J.A. testified that she touched the children only 

because she needed money. After it began deliberations, the jury sent a 

question to the court, asking whether the “lust” and “passion” referred to in 

the jury instruction could be “financial, or other types of ‘lust, passion.’ ” 

After consulting with the parties’ counsel, the court replied that “[t]he specific 

intent required for Counts 2-4 cannot be solely financial. ‘Lust’ refers to 

sexual arousal or sexual gratification of the perpetrator or child.” Wilson’s 

counsel argued before the trial court that stating the intent cannot be “solely

financial” (italics added) may be confusing, but the court explained that the 
49

intent of the first sentence was to “make[] it clear that there could be 

multiple intents going on.” 

On appeal, Wilson contends the court’s answer misconstrued the law 

and altered the intent requirement for section 288. We disagree. “When 

reviewing ambiguous instructions, we inquire whether the jury was 

‘reasonably likely’ to have construed them in a manner that violates the 

defendant’s rights.” (People v. Rogers (2006) 39 Cal.4th 826, 873.)

The court’s reply clearly indicated to the jury that it must find J.A. 

acted with sexual intent. Simply stating that J.A. could have acted for 

multiple reasons, both sexual and financial, did not alter the requisite finding 

of sexual intent. Wilson provides no authority to suggest that a perpetrator

must commit a section 288, subdivision (a) offense with a singular, sexual 

intent. Nothing in the evidence suggests that sexual intent and financial 

intent are mutually exclusive, or that any financial intent affected J.A.’s 

sexual intent. The jury was not reasonably likely to have construed the 

court’s reply as negating its duty to make the required finding of sexual 

intent. We reject Wilson’s claim of error.

VII.

Prosecutorial Misconduct

Wilson asserts his due process rights were infringed due to several 

prosecutorial errors that rendered the trial inherently unfair. He contends 

the prosecutor (1) falsely claimed in his opening statement that text 

messages sent by Wilson to J.A. existed but those text messages were not 

introduced into evidence at trial; (2) met with J.A. immediately before trial to 

“script[]” her testimony to fit the documentary evidence; (3) used 

inflammatory language by calling Wilson a “special type of child molester” 

during his opening statement; and (4) improperly vouched for J.A.’s 
50

credibility. He also contends the court erred in not correcting these errors, 

regardless of whether Wilson’s counsel objected at the time. 

As Wilson concedes on appeal, his counsel did not object to any of these 

allegedly improper acts by the prosecution.18 Setting aside any issues of 

forfeiture, we conclude there was no prejudicial error by the prosecutor and, 

by extension, the trial court. Most importantly, even assuming each act 

complained of by Wilson was wrongful, Wilson fails to establish that the 

alleged errors warrant reversal. Wilson must establish that “there is at least 

a reasonable probability that a more lenient verdict would have been 

returned in the absence of the errors.” (See, e.g., People v. Vance (2010) 

188 Cal.App.4th 1182, 1207; see also People v. Rodriguez (2020) 9 Cal.5th 

474, 487 [reviewing claims of improper prosecutorial vouching and noting 

“that courts have often found that brief statements such as those before us 

have limited prejudicial effect”]; People v. Armstrong (2019) 6 Cal.5th 735, 

798 [holding prosecutorial misconduct was not prejudicial under standard 

established by People v. Watson (1956) 46 Cal.2d 818, 836].)

Wilson fails to meet this standard. Even if we consider the claims of 

misconduct cumulatively, they are not sufficient to have deprived Wilson of a 

fair trial. The evidence of his guilt was so overwhelming that it is not 

reasonably probable the jury would have reached a different verdict in the 

absence of the alleged prosecutorial acts. 

18 Wilson argues the issues were not forfeited, but also contends that to 

the extent an objection was necessary, his counsel was ineffective for failing 

to object. 
51

VIII.

Cruel and Unusual Punishment

Wilson asserts his indeterminate term of life imprisonment constitutes 

cruel and unusual punishment in violation of both the California and United 

States Constitution “under the facts and circumstances of this case and for 

this offender.” (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) 

“Whether a punishment is cruel and/or unusual is a question of law subject to 

our independent review, but underlying disputed facts must be viewed in the 

light most favorable to the judgment.” (People v. Palafox (2014) 

231 Cal.App.4th 68, 82.) 

Wilson does not dispute that the trial court’s imposed sentence was 

mandatory under the relevant statutes given his conviction of oral copulation 

under section 288.7, subdivision (b), and the jury’s true findings under 

section 667.61, subdivision (b). (§ 667.61, subds. (b), (c)(7), (c)(8), (e)(4) 

[establishing mandatory sentence of 15 years to life for any person convicted 

of multiple enumerated sexual offenses against more than one victim].) He 

also does not appear to challenge the sentencing scheme facially. Instead, he 

focuses on the imposed sentence as applied to him.

Although the mandatory nature of his sentence does not end our 

inquiry, we grant the Legislature great deference. “[T]he determination of 

whether a legislatively prescribed punishment is constitutionally excessive is 

not a duty which the courts eagerly assume or lightly discharge. Here, as in 

other contexts, ‘ “mere doubt does not afford sufficient reason for a judicial 

declaration of invalidity. Statutes must be upheld unless their 

unconstitutionality clearly, positively and unmistakably appears.” ’ ” (In re 

Lynch (1972) 8 Cal.3d 410, 414-415 (Lynch).) Findings of disproportionality 

are exceedingly rare and occur only in extraordinary cases. (Lockyer v. 
52

Andrade (2003) 538 U.S. 63, 73; People v. Em (2009) 171 Cal.App.4th 964, 

972 (Em).)

The Eighth Amendment of the United States Constitution forbids only 

sentences that are “grossly disproportionate” to the crime. (Ewing v. 

California (2003) 538 U.S. 11, 20.) This proportionality principle is narrow 

when applied in noncapital cases. (Ibid.) Somewhat distinctly, under the 

California Constitution, a punishment is cruel or unusual “if, although not 

cruel or unusual in its method, it is so disproportionate to the crime for which 

it is inflicted that it shocks the conscience and offends fundamental notions of 

human dignity.” (Lynch, supra, 8 Cal.3d at p. 424; see also People v. Dillon

(1983) 34 Cal.3d 441, 478 (Dillon).) 

“Lynch describes three ‘techniques’ to determine whether a sentence is 

so disproportionate to the crime as to constitute cruel or unusual 

punishment. [Citation.] We first consider ‘the nature of the offense and/or 

the offender, with particular regard to the degree of danger both present to 

society.’ [Citation.] Next, we compare the sentence to ‘punishments 

prescribed in the same jurisdiction for different offenses which, by the same 

test, must be deemed more serious.’ [Citation.] Finally, we compare the 

sentence ‘with the punishments prescribed for the same offense in other 

jurisdictions having an identical or similar constitutional provision.’ 

[Citation.] The weight afforded to each prong may vary by case. [Citation.] 

‘Disproportionality need not be established in all three areas.’ ” (People v. 

Baker (2018) 20 Cal.App.5th 711, 723 (Baker).)

On appeal, Wilson does not present an argument regarding each of 

these techniques, but rather focuses on what he characterizes as his minimal 

culpability as a non-perpetrator. As Wilson argues, he “was not present 
53

when [J.A.] committed the molest acts, did not force her to commit them, and 

was not aware she was committing the acts when she did them.” 

Wilson’s argument ignores that under California law, a direct aider and 

abettor with the requisite mental state is equally guilty of committing the 

intended crime as the direct perpetrator. (§ 31.) “ ‘[W]hen an accomplice 

chooses to become a part of the criminal activity of another, [he] says in 

essence, “your acts are my acts,” and forfeits [his] personal identity. We 

euphemistically may impute the actions of the perpetrator to the accomplice 

by “agency” doctrine; in reality, we demand that [he] who chooses to aid in a 

crime forfeits [his] right to be treated as an individual.’ ” (People v. 

Prettyman (1996) 14 Cal.4th 248, 259.)

In People v. Gonzales (2001) 87 Cal.App.4th 1, the court rejected the 

defendants’ argument that because they were merely aiders and abettors, 

their sentences equal to that imposed on a direct perpetrator were cruel and 

unusual. (Id. at pp. 16-17.) Looking at the circumstances of the offense—a 

murder in that case—and the defendants’ participation, the court concluded 

that the imposed sentences were not cruel and/or unusual as applied to the 

defendants even though they were not the shooter. (Ibid.; see also Em, supra, 

171 Cal.App.4th at pp. 974-975 [considering proportionality of aider and 

abettor’s sentences based on their “integral assistance” in commission of 

offense].)

We apply the same analysis here. Wilson’s role as an aider and abettor 

does not negate his significant participation in the offenses. Although he did 

not directly molest the girls, Wilson was the central figure leading to their 

sexual abuse. The evidence at trial established that he sent proposals to J.A. 

to take advantage of her trusted role as a mother and caretaker to reach 

young children that were beyond Wilson’s own reach. By taking advantage of 
54

J.A.’s desperate financial need and leading her into increasingly sexually 

explicit acts, Wilson enabled the molestation of these young, vulnerable 

children. Although the jury found J.A. harbored her own sexual desires, 

there is a strong likelihood that without Wilson’s instigation and offer of 

payment, the abuse would have never occurred. Thus, rather than being an 

unwitting minor assistant, Wilson was the central figure in the offenses.

We also reject Wilson’s suggestion that unlike other sexual offenses 

against older children, the harm to the victims here was minimal because 

there is no evidence the girls “were even aware the conduct occurred or 

suffered any type of psychological or physical trauma.” California courts 

have long recognized “a strong public policy to protect children of tender 

years.” (People v. Olsen (1984) 36 Cal.3d 638, 646.) “Along a spectrum 

ranging from murder, mayhem, and torture on one end to petty theft on the 

other, ‘lewd conduct on a child may not be the most grave of all offenses, but 

its seriousness is considerable.’ ” (Baker, supra, 20 Cal.App.5th at pp. 724-

725.) Rather than decreasing his culpability, the vulnerability of the girls 

given their young age is an aggravating circumstance. (Id. at p. 725.) 

Similarly, Wilson’s culpability is heightened by aiding J.A. to abuse her 

trusted position as a mother and caregiver to assault the children by 

invidiously abusing the trust the girls placed in her. (See, e.g., People v. 

Gomez (2018) 30 Cal.App.5th 493, 501-502.)

Wilson also relies on his criminal-free history, college education, and 

general good standing in society to suggest the punishment is 

disproportionate when applied to him. “Although these factors are favorable 

to him, they do not outweigh the other factors.” (Baker, supra, 

20 Cal.App.5th at p. 725.) Rather than suggesting a need for leniency, his 

education and self-proclaimed success in life suggest he was aware of the 
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severity of his actions and did not embark on his criminal path due to an 

incomplete understanding of its severity and effect. A college education and 

good job are not a “free pass” to commit heinous acts while avoiding the 

harshest penalties that apply to those perceived to be of a lower standing.

Finally, Wilson contends that the prosecution’s plea deal with J.A., 

which resulted in her not serving any prison time despite her role as the 

direct perpetrator, demonstrates how disproportionate his sentence is to his 

culpability. To support this contention, Wilson relies on the Supreme Court’s 

decision in Dillon, in which the court relied on the discrepancy between the 

defendant’s life sentence and the sentences of his aiders and abettors, none of 

whom were sentenced to any prison time. (Dillon, supra, 34 Cal.3d at p. 488.) 

The court held that the excessiveness of the defendant’s sentence was 

“underscored by the petty chastisements handed out to the six other youths 

who participated with him in the same offenses.” (Ibid.) Thus, the difference 

between defendant’s heavy sentence compared to “the proverbial slap on the 

wrist” received by the other defendants was a relevant factor in the court’s 

holding that the defendant’s life sentence was cruel and unusual. (Ibid.)

Wilson, however, ignores that while the Dillon court compared the 

defendant’s sentence to some of his aiders and abettors, it declined to 

compare the defendant’s sentence to the one aider and abettor who was 

granted immunity “for giving evidence against all the others.” (Dillon, supra, 

34 Cal.3d at p. 488, fn. 40.) Plea agreements premised, in part, on an 

offender’s cooperation with law enforcement are not unusual and an 

admission of guilt and agreement to cooperate often has an effect on the 

imposed sentence. (See, e.g., People v. Perez (2016) 243 Cal.App.4th 863, 

879-880.) Here, J.A. entered an agreement with the prosecution premised on 

her cooperation with law enforcement and agreement to testify against 
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Wilson. Wilson, obviously, did not cooperate and still denies his guilt. 

Accordingly, comparing the sentences of Wilson and J.A. by ignoring the 

effect of J.A.’s cooperation fails to provide an appropriate comparison in 

regard to proportionality.

Beyond his challenge to his sentence as a non-perpetrator as compared 

to the sentence for J.A. and reliance on his personal history, Wilson makes no 

effort on appeal to challenge his sentence as being disproportionate as 

compared to the sentences for other more serious crimes or sentences 

imposed for similar sentences in other states. By failing to make a challenge 

to his sentence under those techniques for applying the constitutional 

analysis in his opening brief, we deem the issues forfeited. (See, e.g., People 

v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) Considering the claims raised by 

Wilson, we do not find this case to be one of the exceedingly rare cases 

warranting a finding that the imposed sentence is disproportionate to 

defendant’s culpability. Accordingly, Wilson fails to show that his sentence 

violates the Eighth Amendment or the California Constitution.

IX.

Cumulative Error

Wilson contends that even if the alleged errors standing alone did not 

deny him a fair trial, the cumulative effect of these errors unfairly denied 

him his due process rights. His claim of cumulative error must demonstrate 

that absent the errors, there is a reasonable probability the jury would have 

reached a more favorable result. (People v. Holt (1984) 37 Cal.3d 436, 458.) 

Wilson has not met this burden. For the reasons stated ante, we conclude his 
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conviction was not the result of any prejudicial error. For the same reasons, 

his claim of cumulative error has no merit. 

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.