[927] Opinion
NARES, J.
The prosecution charged Hubert Dymitr Haraszewski, Jr., with 23 counts of various sex crimes involving four minors (Coby, Bryan G., Nolan E, and Darrell C.) over a period of more than a decade.1
The initial arrest and investigation began when a state park ranger patrolling San Onofre State Beach arrested Haraszewski on suspicion of child endangerment after observing Coby, who was then 12 years old, driving Haraszewski’s car. A detective’s warrantless search of the passenger compartment of Haraszewski’s car revealed a book on oral sex, a massager, a tub of petroleum jelly, condoms, a digital camera, and a flash (or thumb) drive. A warrantless search of the trunk revealed another thumb drive, which contained sexually suggestive folders, under the spare tire. Suspecting that Coby may have been sexually molested, the detective viewed incriminating pictures on the camera without a warrant and then gave the evidence to another detective who was interviewing Coby. Coby eventually disclosed information showing Haraszewski had sexually molested him. After the court denied his motion to suppress the evidence, Haraszewski admitted various prior conviction allegations, and the court found true other prior conviction allegations. A jury found Haraszewski guilty of all 23 counts and all related enhancement allegations. The court sentenced him to a determinate prison term of 36 years and an indeterminate term of 600 years to life.
On appeal, Haraszewski contends (1) the search of his car following his arrest violated his rights under the Fourth Amendment to the United States Constitution because it was not reasonable to believe the car contained evidence of the offense of arrest, and thus the court erred by denying his motion to suppress the evidence obtained from the search; (2) the court committed prejudicial instructional error by failing to define the term “complaining witness” in CALCRIM No. 1190 concerning the noncorroboration requirement for sexual offense victim testimony “after several witnesses complained about [his] committing sex crimes against them”; (3) his two convictions for posing or modeling Coby and Bryan in violation of Penal Code2 section 311.4, subdivision (c) (hereafter section 311.4(c)) must be reversed because the court erroneously instructed the jury, over a defense objection, that the prosecution did not have to prove he directed Coby and Bryan when he took images of them; (4) the evidence is insufficient to sustain his conviction for posing or modeling Coby because “Coby testified that there [928] was no posing or direction” and the pictures and movie he took of Coby at the nude beach were “not choreographed”; (5) the foregoing claimed instructional errors were cumulatively prejudicial, requiring reversal; and (6) the evidence is insufficient to support his four convictions of duplicating child pornography with intent to distribute it to a minor in violation of section 311.2, subdivision (d) (hereafter section 311.2(d)). We affirm the court’s denial of Haraszewski’s suppression motion and conclude the court did not commit instructional error and Haraszewski’s cumulative error and insufficiency-of-the-evidence claims are unavailing. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND A. The People’s Case
In the evening on October 20; 2007, State Park Officer Grant Beers issued a citation to a white BMW parked in the south day-use lot near trail 6 at San Onofre State Beach for being parked in the lot after the park closed. It was the only vehicle left on the lot. The beach near trail 6 is known as a clothing-optional (or nude) beach. Officer Beers notified State Park Officers Martin Urbach and Paul Brown, who were in a different patrol car, that the white BMW was still in the park and he had issued it a citation.
About 8:17 p.m. that night, while Officer Urbach was driving with Officer Brown, he saw the white BMW driving in the dark toward him northbound on the road near trail 5, which is north of trail 6. Officer Urbach saw that the BMW was being driven illegally by a young boy who was not old enough to drive. The officer made a U-turn to make a traffic stop. By the time he completed the U-tum, the BMW had stopped and the boy was switching seats with Haraszewski, who had been in the front passenger seat. Officer Urbach asked Haraszewski for his license and registration, and asked why the boy had been driving. Haraszewski said he was giving the boy a driving lesson. Haraszewski also said he had been hiking on the beach, denied that he and the boy had visited the clothing-optional part of the beach, and claimed he was the boy’s cousin and the boy was “13 going on 14” years of age. The boy also said he was 13 going on 14. The police determined later that night that the boy (Coby) was 12 years of age and Haraszewski was 32.
After Officers Urbach and Brown made the traffic stop, Officer Beers and another officer, Paul Mills, arrived and saw the white BMW was the same car for which Officer Beers had issued the parting citation. At some point, Officer Urbach ordered Haraszewski and Coby out of the car, handcuffed Haraszewski, and put him in the back of the patrol car. Officers Beers and Mills dealt with Coby.
[929] About two hours later, with Haraszewski still in the patrol car and Coby also still at the scene, Officers Urbach and Brown started inventorying the contents of the BMW because they were going to have the car towed away. They found camping gear in the backseat, a big tub of Vaseline, and a book on oral sex on the floorboard behind the driver’s seat. At that point, Officer Brown, who was the supervisor, stopped the inventory and called the San Diego County Sheriff’s Department to ask for an investigator to assist them. He and Officer Urbach put the items back inside the BMW where they had found them.
At around 9:53 p.m., with Haraszewski and Coby still at the scene, a sheriff’s department patrol unit arrived, and then Detective Justin White, who worked as a child abuse detective for the sheriff’s department, arrived and searched the BMW, both to assist with the inventory and to look for evidence. Detective White searched the entire car, including both the passenger compartment and the trunk, and photographed everything he found. In the passenger compartment, he found camping equipment, a bottle of vodka, a massager, a blue bag, the book on oral sex, a laptop computer, a digital camera, a small thumb drive, a lot of condoms with some packages of lubricant inside a container, and some petroleum jelly. In the trunk, Detective White found a second thumb drive under the spare tire.
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[927] Opinion
NARES, J.
The prosecution charged Hubert Dymitr Haraszewski, Jr., with 23 counts of various sex crimes involving four minors (Coby, Bryan G., Nolan E, and Darrell C.) over a period of more than a decade.1
The initial arrest and investigation began when a state park ranger patrolling San Onofre State Beach arrested Haraszewski on suspicion of child endangerment after observing Coby, who was then 12 years old, driving Haraszewski’s car. A detective’s warrantless search of the passenger compartment of Haraszewski’s car revealed a book on oral sex, a massager, a tub of petroleum jelly, condoms, a digital camera, and a flash (or thumb) drive. A warrantless search of the trunk revealed another thumb drive, which contained sexually suggestive folders, under the spare tire. Suspecting that Coby may have been sexually molested, the detective viewed incriminating pictures on the camera without a warrant and then gave the evidence to another detective who was interviewing Coby. Coby eventually disclosed information showing Haraszewski had sexually molested him. After the court denied his motion to suppress the evidence, Haraszewski admitted various prior conviction allegations, and the court found true other prior conviction allegations. A jury found Haraszewski guilty of all 23 counts and all related enhancement allegations. The court sentenced him to a determinate prison term of 36 years and an indeterminate term of 600 years to life.
On appeal, Haraszewski contends (1) the search of his car following his arrest violated his rights under the Fourth Amendment to the United States Constitution because it was not reasonable to believe the car contained evidence of the offense of arrest, and thus the court erred by denying his motion to suppress the evidence obtained from the search; (2) the court committed prejudicial instructional error by failing to define the term “complaining witness” in CALCRIM No. 1190 concerning the noncorroboration requirement for sexual offense victim testimony “after several witnesses complained about [his] committing sex crimes against them”; (3) his two convictions for posing or modeling Coby and Bryan in violation of Penal Code2 section 311.4, subdivision (c) (hereafter section 311.4(c)) must be reversed because the court erroneously instructed the jury, over a defense objection, that the prosecution did not have to prove he directed Coby and Bryan when he took images of them; (4) the evidence is insufficient to sustain his conviction for posing or modeling Coby because “Coby testified that there [928] was no posing or direction” and the pictures and movie he took of Coby at the nude beach were “not choreographed”; (5) the foregoing claimed instructional errors were cumulatively prejudicial, requiring reversal; and (6) the evidence is insufficient to support his four convictions of duplicating child pornography with intent to distribute it to a minor in violation of section 311.2, subdivision (d) (hereafter section 311.2(d)). We affirm the court’s denial of Haraszewski’s suppression motion and conclude the court did not commit instructional error and Haraszewski’s cumulative error and insufficiency-of-the-evidence claims are unavailing. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND A. The People’s Case
In the evening on October 20; 2007, State Park Officer Grant Beers issued a citation to a white BMW parked in the south day-use lot near trail 6 at San Onofre State Beach for being parked in the lot after the park closed. It was the only vehicle left on the lot. The beach near trail 6 is known as a clothing-optional (or nude) beach. Officer Beers notified State Park Officers Martin Urbach and Paul Brown, who were in a different patrol car, that the white BMW was still in the park and he had issued it a citation.
About 8:17 p.m. that night, while Officer Urbach was driving with Officer Brown, he saw the white BMW driving in the dark toward him northbound on the road near trail 5, which is north of trail 6. Officer Urbach saw that the BMW was being driven illegally by a young boy who was not old enough to drive. The officer made a U-turn to make a traffic stop. By the time he completed the U-tum, the BMW had stopped and the boy was switching seats with Haraszewski, who had been in the front passenger seat. Officer Urbach asked Haraszewski for his license and registration, and asked why the boy had been driving. Haraszewski said he was giving the boy a driving lesson. Haraszewski also said he had been hiking on the beach, denied that he and the boy had visited the clothing-optional part of the beach, and claimed he was the boy’s cousin and the boy was “13 going on 14” years of age. The boy also said he was 13 going on 14. The police determined later that night that the boy (Coby) was 12 years of age and Haraszewski was 32.
After Officers Urbach and Brown made the traffic stop, Officer Beers and another officer, Paul Mills, arrived and saw the white BMW was the same car for which Officer Beers had issued the parting citation. At some point, Officer Urbach ordered Haraszewski and Coby out of the car, handcuffed Haraszewski, and put him in the back of the patrol car. Officers Beers and Mills dealt with Coby.
[929] About two hours later, with Haraszewski still in the patrol car and Coby also still at the scene, Officers Urbach and Brown started inventorying the contents of the BMW because they were going to have the car towed away. They found camping gear in the backseat, a big tub of Vaseline, and a book on oral sex on the floorboard behind the driver’s seat. At that point, Officer Brown, who was the supervisor, stopped the inventory and called the San Diego County Sheriff’s Department to ask for an investigator to assist them. He and Officer Urbach put the items back inside the BMW where they had found them.
At around 9:53 p.m., with Haraszewski and Coby still at the scene, a sheriff’s department patrol unit arrived, and then Detective Justin White, who worked as a child abuse detective for the sheriff’s department, arrived and searched the BMW, both to assist with the inventory and to look for evidence. Detective White searched the entire car, including both the passenger compartment and the trunk, and photographed everything he found. In the passenger compartment, he found camping equipment, a bottle of vodka, a massager, a blue bag, the book on oral sex, a laptop computer, a digital camera, a small thumb drive, a lot of condoms with some packages of lubricant inside a container, and some petroleum jelly. In the trunk, Detective White found a second thumb drive under the spare tire.
Detective White took the evidence he found in Haraszewski’s car to the Encinitas sheriff’s station, where he gave the items to his partner, Lisa Brannan, who was also a child abuse detective. Detective Brannan examined the camera and found on the memory card images of Coby, including one showing him nude on the beach. She also found on the memory card a movie of Coby with Haraszewski talking. On the LG thumb drive found under the spare tire in the trunk of Haraszewski’s car, the police found hundreds of images of naked boys, including boys engaged in sexual activity. The folders on the drive had labels corresponding to the types of images found in the folders. One folder contained pictures of naked boys being spanked. On the other thumb drive, the police found copies of MySpace conversations and messages.
Detective Brannan interviewed Coby at the sheriff’s station around midnight on October 20 to 21, 2007. The interview lasted over an hour. Initially, Coby denied that anything sexual had happened. Later in the interview, he admitted Haraszewski had masturbated his (Goby’s) penis two or three times and twice put his mouth on his penis.
[930]
Subsequent Investigation/Daniel P.
Daniel P. testified he met Haraszewski at “the U,” an area in Palmdale where kids ride BMX bicycles, when he was 17 years old. At that time, Haraszewski was living with his parents near Daniel’s house in Palmdale.
Detective Brannan listened to a recorded telephone conversation that had taken place on November 23, 2007, between Haraszewski and Daniel. During that conversation, Haraszewski asked Daniel to go to Haraszewski’s parents’ house to retrieve and hide some thumb drives and a memory card for a camera. Daniel retrieved the items and later turned them over to Detective Brannan.
Detective Brannan obtained a search warrant, viewed the images on the thumb drives and memory card, and took them to the Regional Computer Forensics Laboratory (RCFL) for analysis. On one of the thumb drives, the police found copies of My Space pages and conversations, other writings, pictures of Coby, pictures of a 10-year-old boy named Bryan, and images of children engaged in sexual activity. One of the pictures of Bryan was also found on another thumb drive along with more copies of MySpace messages.
In an August 13, 2007 MySpace conversation between Haraszewski and Coby, Haraszewski told Coby about a bike seat and gloves he wanted to give to him. In an August 24, 2007 conversation, the two discussed dying their hair and pubic hair pink or purple. In another conversation, Haraszewski sent Coby a “virtual coupon” that read, “This coupon entitles you to do what you want with me.” Haraszewski sent another coupon for “one free Fondle.” When Coby asked what he meant, Haraszewski replied, “Fondle? Lol! Like when u make someone play wit u, u know . . . lol . . . down there? Lol!” In a September 2007 conversation, Haraszewski and Coby discussed their plans to go camping together.
In another online conversation found on a thumb drive, Haraszewski discussed the October 20, 2007 beach trip with someone named Rieran. Haraszewski told Rieran that Coby asked Haraszewski to take him to the nude beach. Haraszewski described how Coby played with a vibrating back massager and put it on his crotch while they were in a Wal-Mart store buying camping equipment. He also wrote about how he enjoyed Coby touching his chest and how Coby balanced a chocolate milk container on his erect penis through his shorts while they were in the car, on the way to the beach. Haraszewski also wrote about wanting to buy “hair bleach” to “bleach [Goby’s] pubes and dye them purple like mine later.”
Haraszewski also told Rieran that after he and Coby undressed at the beach, he avoided looking at Coby so that he (Haraszewski) would not get an [931] erection. He described showing Coby his erection while they were in the water and then playing in the sand with Coby. Haraszewski also indicated Coby agreed to “mess around” with him but not engage in oral sex. Haraszewski claimed Coby “expected to be touched” and said he “[had] a strong feeling [Coby] was even looking for more.” He described Coby as “hot” and “sexy.”
Haraszewski indicated to Rieran that after they went into a cave, he and Coby took off their clothes and both had erections. He described Coby’s penis in detail for Rieran. He told Rieran that park rangers stopped him after he let Coby drive, and he “was arrested [on] suspicion of child abuse.” He mentioned the rangers found a tent, a sleeping bag, a back massager, a bottle of alcohol, a “book on givin[’] head,” and a “little [USB] drive” containing “nude pictures] of a minor [he] was accused of abusing.”
In mid-December 2007, Detective Brannan executed a search warrant at Haraszewski’s parents’ home in Palmdale and found more writings belonging to Haraszewski, including a printout of an instant message conversation in which he discussed taking Coby to the beach. In July 2008, Detective Brannan seized more boxes of Haraszewski’s writings in a search of his parents’ garage.
Coby’s Testimony
Coby testified that in 2007, when he was 12 years old, he lived in Costa Mesa with his father and stepmother. He liked to go BMX biking at a place called Sheep Hills. He met Haraszewski at Sheep Hills at the end of July 2007. Haraszewski told him he was 19 and his name was “Squirrel.” Haraszewski gave him his e-mail address so that Coby could find his MySpace page.
Coby added Haraszewski as a MySpace friend and they began communicating through MySpace. Haraszewski would hang out with him every other weekend, usually at Sheep Hills to ride bikes. Haraszewski met Coby’s father and stepmother.
Coby testified that Haraszewski asked him whether he had ever had sex and whether he wanted to have sex. When Haraszewski told Coby that he liked him, Coby did not know what Haraszewski meant but was “weirded out by it.” Haraszewski tried to touch Coby’s penis when they were at the beach in San Onofre on October 20, 2007. They had talked on MySpace about going camping and Coby’s father had given permission. Coby met Haraszewski at Sheep Hills, they put his bike in Haraszewski’s BMW, and then they drove to San Onofre. They parked the car, took pictures of each other, and then [932] walked down the trail to the beach. Both Haraszewski and Coby took their clothes off on the beach. Coby testified he did not want to take his clothes off; it was Haraszewski’s idea that Coby should take off his pants.
Haraszewski took pictures of Coby on the beach that day. Coby was nude in at least two of the photographs and in a video Haraszewski took that day.
Coby indicated that after he and Haraszewski got dressed Haraszewski showed him an opening to a nearby cave in the cliffs that was big enough to walk into. While they were in the cave, Haraszewski told him to take off his pants and then he touched Goby’s penis. The touching stopped when Coby jumped back. When they left the cave at around sundown, they walked around on the beach. It was dark when they finally made their way back up the trail.
Haraszewski asked Coby whether he wanted to drive the BMW and Coby said he did. Coby testified it was “a little driving lesson,” and Haraszewski sat in the front passenger seat while Coby was driving. When they saw the park rangers’ patrol car, they stopped and switched seats. Haraszewski told him to tell the officers they were cousins.
Haraszewski told Coby on several occasions that he wanted to be more than just friends with him. Coby testified that Haraszewski touched his penis on two separate occasions in a cave at Sheep Hills in Costa Mesa. Both times Haraszewski stuck his hands down Goby’s pants. Coby never told his father or stepmother about the touching because he was embarrassed and afraid.
Bryan G. ’s Testimony
Bryan G., who was 12 years old at the time of the 2009 trial in this matter, testified he met Haraszewski in 2007 while he was riding his BMX bike at the U in Palmdale. Haraszewski took him to an old abandoned car in the mountains near the area where they rode bikes. When they went inside the car, Haraszewski told Bryan to take off his clothes. Bryan did not want to take off his pants, so Haraszewski took them off without Bryan’s help. When Bryan was naked, Haraszewski took photographs of Bryan’s genitals. Haraszewski told Bryan to grab what Bryan referred to as his “private part,” and, when Bryan complied, Haraszewski took a photograph of him. Bryan tried to leave but Haraszewski kept pulling him back and told him not to leave. Haraszewski, who was wearing his pants, put the camera in a front pocket and touched Bryan’s penis with his hand, which made him uncomfortable. Bryan tried to put his clothes on, but Haraszewski kept pulling them down. "Wffien Haraszewski heard Bryan’s mother calling for him, Haraszewski got scared. Bryan put his clothes back on and left. Haraszewski told Bryan not to tell anyone what had happened and said he would loan Bryan his iPod if he did not tell.
[933]
Darrell C. ’s Testimony
Darrell C., who was 28 years of age at the time of trial, was 10 or 11 years old when he met Haraszewski while roller skating. They became friends and hung out together almost every day. Their friendship eventually became a sexual relationship. It began when Haraszewski slipped his finger into a hole in Darrell’s sweatpants and rubbed Darrell’s penis for three to five minutes. At that time Darrell was 11 or 12 years old and Haraszewski was 16 or 17. Later, Haraszewski gave Darrell an ultimatum, indicating he would not be Darrell’s friend unless Darrell agreed to be more than friends. Eventually, Darrell gave in and allowed Haraszewski to touch his penis and perform oral sex upon him. These touchings occurred sometime between 1993 and late 1994 or early 1995. The sexual activity occurred frequently. Most often, it occurred at Haraszewski’s parents’ house, but sometimes it happened in a wooded area near the BMX tracks. Darrell cut off contact with Haraszewski when Darrell was 15 or 16.
Nolan F. ’s Testimony
Nolan F. testified he met Haraszewski when Nolan was 10 or 11 years old and Haraszewski was 19 or 20 years old. He met Haraszewski through his stepbrother’s BMX biking. After about six months, Haraszewski started masturbating Nolan, who was in sixth grade at the time, and later started orally copulating him. Haraszewski masturbated Nolan at least 36 times and orally copulated him more than a dozen times.
Expert Testimony
The prosecution presented expert testimony to explain why children often delay disclosing sexual abuse. Some children who have known the abuser for a long time may feel emotionally bonded to their abuser. Others have difficulty admitting they were victims because they are ashamed or embarrassed or feel culpable because they participated. Many victims initially make only partial or tentative disclosures and later disclose details of the sexual activity. Although young children are considered susceptible to suggestion during questioning, children older than 10 are no more susceptible than adults.
Prior Convictions
In 1996, in Ventura County Superior Court case No. CR38454, Haraszewski pleaded guilty to three counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)), two counts of child molestation (§ 647.6), one count of sexual exploitation of a child (§ 311.3, subd. (b)(5)), two counts [934] of solicitation to commit sexual assault (§ 653f, subd. (c)), and one count of contributing to the delinquency of a minor (§ 272).
B. The Defense Case
Haraszewski testified he was 34 years of age, and in the previous few years he had been a full-time student who also worked in telemarketing. He met Darrell in 1993 when he was 17 and Darrell was 11. Haraszewski turned 18 in October 1993. He admitted to having been in love with Darrell and having a sexual relationship with him. He also admitted giving Darrell an ultimatum in 1993 about ending the friendship or turning it sexual. His relationship with Darrell when Darrell later came back from New York for visits included masturbation, oral sex, and anal sex. Darrell was 14 years old, and he was 19.
Haraszewski testified the first time he had sexual contact with Darrell he touched Darrell’s penis while he was showering. Haraszewski was 18 and Darrell was 12. he admitted masturbating Darrell countless times, and performing oral sex upon him more than 24 times.
Haraszewski also admitted having a sexual relationship with Nolan. The first time consisted of masturbating Nolan in his room in 1995 when Haraszewski was 19 and Nolan was 11. Haraszewski performed oral sex upon him six times and masturbated him fewer than 10 times. Once they had oral sex while in the Disneyland parking lot.
Haraszewski also admitted having a sexual relationship with a boy named David and pleading guilty to several sex offenses based on sexually touching him. He also admitted taking pictures of Bryan in the abandoned car but denied forcing him and posing him. When he took the pictures of Bryan in the nude, Haraszewski was out on bail on charges related to Goby in this case. Haraszewski indicated that Bryan wanted to strip for the pictures and Haraszewski did not discourage it. Haraszewski indicated he never threatened or tried to bribe Bryan. He downloaded the pictures onto a thumb drive. Haraszewski admitted asking Daniel to retrieve the thumb drive for safekeeping.
Haraszewski indicated he never intimately touched Goby. He denied touching him at the cave at the Sheep Hills bike park. He admitted making plans with Goby to go to the nude beach. He denied touching Goby’s penis at the nude beach. Haraszewski took pictures of him, but did not pose him. He indicated they touched each other when they put lotion on each other’s back. Haraszewski denied touching Goby’s penis in the cave at the beach. He admitted talking with him about orally copulating him, but never did it.
[935] DISCUSSION
I., II.