People v. Gentile CA2/6

Filed 5/13/24 P. v. Gentile CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B323686 (Super. Ct. No. 16F-00410) Plaintiff and Respondent, (San Luis Obispo County)

v.

JEFFREY PAUL GENTILE,

Defendant and Appellant.

Jeffrey Paul Gentile was convicted in a jury trial of possessing child pornography. The jury also found true the allegation that he possessed more than 600 images and 10 or more showed children under the age of 12 years. (Pen. Code § 311.11, subds. (a), (c).) The trial court suspended the imposition of sentence and placed appellant on probation on certain terms and conditions, including the service of 180 days in jail. He appeals contending: 1. The trial court committed error and violated appellant’s state and federal constitutional rights by instructing the jury with CALCRIM No. 1191A. 2. The trial court committed error and violated appellant’s fourteenth amendment

right to due process and a fair trial when it allowed the prosecutor to admit other images found on appellant’s computer. 3. The errors “cumulatively” deprived appellant of due process of law pursuant to both federal and state constitutions. As we shall explain, the first contention is waived and even on the merits, fails. And, as to this contention, appellant was not deprived of the effective assistance of counsel. As to the second contention, the trial court did not abuse its discretion in admitting other images on his computer. As to the third contention, there are no errors to “accumulate.” Factual Background We view the evidence in the light most favorable to the judgment as is required by the familiar rule governing appellate review. (E.g., People v. Johnson (1980) 26 Cal.3d 557, 575-578.) Detectives from the Arroyo Grande Police Department and the San Luis Obispo Sherrif’s office were alerted to a computer at appellant’s residence because the computer had access to “BitTorrent,” a computer site that includes child pornography. Pursuant to search warrants, the police seized the computer from appellant’s bedroom and found 42 videos with the child pornography images. They also found two images relating to “explicit content.”1 Expert testimony was admitted that child pornography cannot have been found on appellant’s computer without someone consenting that it be sent to the computer.