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1. People v. Wood, 2009 Cal. App. Unpub. LEXIS 9959
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People v. Wood
Court of Appeal of California, Fourth Appellate District, Division One
December 17, 2009, Filed
D054112, D055201
Reporter
2009 Cal. App. Unpub. LEXIS 9959 *

THE PEOPLE, Plaintiff and Respondent, v. JAMES
RICHARD WOOD, Defendant and Appellant. In re
JAMES WOOD on Habeas Corpus.
Notice: NOT TO BE PUBLISHED IN OFFICIAL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OPINION HAS NOT BEEN CERTIFIED FOR
PUBLICATION OR ORDERED PUBLISHED FOR THE
PURPOSES OF RULE 8.1115.
Prior History: [*1] APPEAL from a judgment of the
Superior Court of San Diego County. Super. Ct. No.
SCD205782. Michael T. Smyth, Judge, and petition for
writ of habeas corpus.
Disposition: Judgment affirmed in part, and reversed in
part; petition denied.

Core Terms
photographs, video, shoot, outfit, sexual, dissuade,
demeanor, copulation, e-mail, posing, six-minute,
videotape, depicted, instruct, minutes, contends,
wearing, defense counsel, trial counsel, touching,
replied, consented, probative value, sexual battery,
recorded, vagina, ineffective assistance of counsel,
ineffective assistance, series of photographs, character
witness
Judges: NARES, J.; BENKE, Acting P. J., HUFFMAN,
J. concurred.
Opinion by: NARES

A jury convicted James Richard Wood of (1)
misdemeanor sexual battery (count 1: Pen. Code, 1 §
243.4, subd. (e)(1), hereafter referred to as section
243.4(e)(1)), and (2) attempting to dissuade a victim and
witness (here, Christina H.) from reporting a crime
(count 2: § 136.1, subd. (b)(1), hereafter referred to as
section 136.1(b)(1)), which the court reduced to a
misdemeanor. Count 1 was based on evidence that
Wood, a photographer Christina hired to take more than
4,000 photographs of her in sexually suggestive and
often nude poses for a calendar for her boyfriend, orally
copulated her without her consent. Count 2 was based
on evidence that, after Christina reported the incident to
the police, Wood sent an e-mail to her warning her it
was a crime to file a false police report, she would face
a costly civil lawsuit if she continued her criminal
complaint against him, and she should instruct a certain
police [*2] detective to "back off" if she wanted to keep
her graphic photographs private. The court suspended
imposition of sentence, granted Wood summary
probation, and committed him to the custody of the
sheriff for 120 days.
Wood appeals the judgment and petitions for a writ of
habeas corpus. In his appeal, he contends (1) the court
unreasonably restricted the number of photographs
admitted into evidence in violation of his due process
right to present a defense (here, a mistake of fact
defense); (2) his trial counsel provided ineffective
assistance by failing to introduce into evidence a secret
"nanny cam" videotape of the photo shoot that Wood
maintains showed Christina reasonably appeared to
consent to the oral copulation; (3) his trial counsel also
provided ineffective assistance by failing to introduce
into evidence the testimony of four female character
witnesses whom Wood had also photographed in his
home and who would have testified he was always

Opinion
1 All

further statutory references are to the Penal Code unless
otherwise specified.

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2009 Cal. App. Unpub. LEXIS 9959, *2
extremely professional and never made improper
advances; (4) the court's failure to admit all of the
photographs and defense counsel's failure to introduce
in [*3] evidence the nanny cam videotape and the
testimony of the character witnesses all impacted
directly on the issue of count 2 and acted to deny Wood
a fair trial; (5) section 136.1(b)(1) is either
constitutionally flawed, or flawed as instructed, because
the statute does not have a mens rea requirement; and
(6) the evidence was insufficient to prove Wood violated
section 136.1(b)(1) as it did not cover his conduct.
In his writ of habeas corpus petition, consolidated with
his appeal for disposition, Wood asserts his "petition is
in effect an alternative presentation" of two contentions
raised in his appeal: (1) his trial counsel provided
ineffective assistance by failing to introduce into
evidence the testimony of four female character
witnesses whom Wood had also photographed in his
home and who would have testified he was always
extremely professional and he never made improper
advances; and (2) section 136.1(b)(1) is either
constitutionally flawed, or flawed as instructed, because
the statute does not have a mens rea requirement, and
Wood's trial counsel provided ineffective assistance of
counsel by failing to request an appropriate jury
instruction.
We conclude the trial court violated [*4] Wood's right to
present a defense and abused its discretion under
Evidence Code section 352 by unreasonably limiting the
number of photographs presented to the jury. We reject
the remainder of his contentions. Accordingly, we
reverse Wood's conviction on count 1 (§ 243.4(e)(1)),
affirm his conviction on count 2 (§ 136.1(b)(1)), and
deny the petition.
FACTUAL BACKGROUND
A. The People's Case
1. Count 1 (sexual battery)
Christina testified that she although she was not a
professional model and had never been involved in
pornography, she responded by e-mail to what she
thought was a professional online advertisement on
craigslist, offering a "free photo shoot for a sexy
calendar," and hired Wood to take photographs of her in
sexually suggestive and sometimes nude poses for a
calendar for her boyfriend. Feeling like she was
auditioning, Christina attached to her e-mail some sexy
photographs a friend had taken of her. Wood responded
with an e-mail offering her the opportunity to participate

in a three-hour photo shoot and instructing her to come
alone.
In late October 2006 Christina drove to Wood's Del Mar
Heights home, which was also his studio. Wood
provided a written contract explaining that [*5] in
exchange for her receiving the promised "sexy
calendar" and a disk containing 500 photograph images,
he would have the rights to all of the photographs.
Christina signed the contract.
After the photo shoot began, Christina followed Wood's
instructions, began taking off her clothes, and almost
"right away" was nude. She indicated that, although
many of the photographs depicted her in the nude and
spreading her legs, she never placed anything into her
vagina or engaged in masturbation. Christina stated she
trusted Wood and denied that any "chemistry" existed
between them.
Toward the beginning of the photo shoot, Wood asked
her, "Does the photographer get some of that?"
Christina stated she might have responded with a "funny
face," but did not know whether he was serious and
assumed he was joking.
Later, during the part of the session in which she was
wearing a red-and-white outfit, as she was lying on her
back on a couch with her legs raised and vagina
exposed, Wood approached her and began "adjusting"
her legs. Without saying anything to her, Wood
"opened" her legs and began to lick her vagina.
Christina testified she was "shocked" and "froze." She
indicated she had not said anything [*6] that would
have given him permission to lick her.
After trying to think of something to say, Christina told
him, "I'm just here for the photos." When Wood started
licking her again, she said again, "I'm just here for the
photos." He finally stopped when she said the same
thing a third time. Christina testified that she felt scared
because Wood had "crossed a boundary," and she did
not know what he was capable of doing. She did not
know whether he would try to hurt or stop her if she "just
left," so she "felt the best thing to do was to act calm."
She explained that she did not scream because she
"didn't want to aggravate the situation"; she "didn't want
it to seem like something was wrong, so [she] could get
out of there safely." She continued to pose in the nude
for photographs and continued to smile.
Christina testified that when the photo shoot was over
and she got into her car, she "just broke down" and
called her sister, her best friend, and her boyfriend. She

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2009 Cal. App. Unpub. LEXIS 9959, *6
was crying and "freaking out because of how he had
licked" her and did not know whether she should call the
police. She was "hysterical" when she spoke with her
sister. She wanted to call the police because she felt
"extremely [*7] violated." When shown her cell phone
bill, Christina identified the calls she made to her sister,
best friend, and boyfriend. After speaking to them all,
she called the police.

making stuff up" and, when Detective Metz asked him
whether he was saying that Christina's allegation that he
"had gone down on her" while he was posing her was
"absolutely not true," Wood replied, "Yep." When
Detective Metz asked [*9] Wood whether he was willing
to give a "consensual mouth swab," Wood answered
that he thought it was an invasion of his privacy "based
upon somebody's false accusations."

After the police came to her apartment and took her
statement, Christina was taken to a medical facility
where she underwent a SART 2 examination, during
which her vagina was swabbed for DNA.

Detective Metz testified that Wood denied Christina's
allegations and stated he never orally copulated her.
Although Wood initially did not want to voluntarily
provide a mouth swab for DNA, he eventually provided
one. By means of a stipulation, the jury was informed
that Wood "could not be excluded as a possible
contributor to the low level nonsperm DNA" found on
Christina's vagina.

During cross-examination by defense counsel, Christina
testified that the oral copulation incident occurred when
she was wearing a red-and-white outfit. She stated she
was in a "survival mode" and wanted to leave, but
admitted she continued participating in the photo shoot
for at least one-and-a-half hours after the oral copulation
occurred. Defense counsel showed her 16 photographs
(exhibits 6 and H-V, later admitted into evidence)
depicting her wearing different outfits. Christina
acknowledged that exhibit 6 showed her smiling while
wearing a purple bodice, which was the next outfit she
wore
after
the
incident
occurred.
Christina
acknowledged she was smiling in several of the other
photographs. Defense counsel showed a series of
photographs taken before the incident occurred,
depicting Christina [*8] wearing the red and white outfit.
Christina agreed that some of the images depicted her
touching her private parts, posing with a banana, and
permitting Wood to position her legs. Defense counsel
also showed a series of photographs that Wood took
immediately after the incident occurred. As he was
showing the photographs, Christina acknowledged the
photographs captured her demeanor.
2. Count 2 (attempting to dissuade a victim from
reporting a crime)
In late November 2006 San Diego Police Department
Detective Richard Metz contacted Wood by telephone,
identified himself, and informed Wood he was calling
about a complaint Christina had filed with the San Diego
Police Department. As shown by the transcript of the
recorded conversation, which was admitted into
evidence at trial and played for the jury, Wood denied
touching Christina in an "inappropriate" way. When
asked whether he "kiss[ed]" Christina's vagina, Wood
answered, "No." Wood accused Christina of "just

2 Sexual

On January 9, 2007, Christina received an e-mail from
Wood warning her it was a crime to file a false police
report, she would "be facing a very costly civil suit from
[him]" if she continued her criminal claims against him,
and she should instruct Detective Metz to "back off" if
she wanted to keep her graphic photographs private.
Christina testified she felt "threatened" after she
received that e-mail. She then contacted Detective
Metz.
On January 10, 2007, Detective Metz arranged a
recorded telephone call from Christina to Wood. A
recording of the conversation was played for the jury,
and the transcript was admitted into evidence. During
[*10] the call, Wood told Christina that he "didn't do
anything that [she] didn't consent to." He told Christina
that her "masturbating in front of [him]" was "basically
consent." When Christina replied that she was posing,
not masturbating, Wood told her, "[Your] hands are
there. You've got objects down there. You've got
bananas. You've got all kinds of stuff." Christina replied
she was posing with props and trying to look sexy. She
also told Wood she was "upset" about his "licking" her.
Wood then told her "it needs to go away before it gets
ugly," and "if I meet with my attorney today is when it
starts to get ugly." Wood also told Christina, "you have
to tell the detective that you . . . rethought this and that,"
and "you just need to . . . convince him that you were . .
. overreacting or however you want to put it." "[I]t needs
to go away," Wood warned Christina, "unless you want
this to turn into a nightmare." When Wood said she
"didn't say stop" and "didn't close [her] legs," Christina
replied, "I did freeze." She acknowledged that Wood did
not "force" her, but said "[y]ou just did it without my
permission."

Assault Response Team.

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 Page 4 of 13
2009 Cal. App. Unpub. LEXIS 9959, *10
Christina's boyfriend testified that on October 29, 2006,
she called him at [*11] around 4:40 in the afternoon.
Christina, who was crying, told him she had gone to get
a calendar made and had been assaulted.
B. The Defense
David Rivera testified he was a photographer with
nearly 20 years of experience in the photography
business. He was familiar with digital cameras and with
metadata, which is information like date, time and
exposure that is recorded when an image is captured.
Based on the metadata contained in the file folders of
Wood's 4,291 digital photographs of Christina, he was
able to determine the sequential order of the
photographs. He opined that the photo shoot started at
10:59 a.m. and ended at 4:06 p.m., and the series of
photos depicting Christina wearing the red-and-white
panty and bra outfit, which began about one-and-a-half
hours into the five-hour photo shoot, lasted about 43
minutes, ending at 1:11 p.m.. After that series of
photographs, Wood took an additional 2,613
photographs of Christina. Rivera testified he viewed the
photographs, and he did not detect a change in
Christina's demeanor after the red-and-white outfit
session; her demeanor remained consistent throughout
the photo shoot. He opined that "just under" 10 minutes
passed between the [*12] end of the red-and-white
outfit session and the beginning of the next outfit series.
The other costume changes occurred within a "[v]ery
few seconds to a minute or so."
On cross-examination, Rivera acknowledged that
through the use of free software, a skilled computer
operator can manipulate metadata to alter the sequence
of a series of photographs.
DISCUSSION
A. Exclusion of Photographs
In support of his appeal, Wood first contends the court
unreasonably restricted the number of photographs
admitted into evidence, and thereby violated his due
process right to present a defense. We conclude the
court violated Wood's right to present a defense and
abused its discretion under Evidence Code section 352
by unreasonably limiting the number of photographs
presented to the jury.
1. Background
a. People's motion in limine to exclude photos or limit
the number admitted

In their trial brief, the People filed a motion in limine to
"[e]xclude or limit [the] number of photos taken of victim
by Defendant." Indicating that the defense intended to
offer into evidence all of the more than 4,200
photographs that Wood took of Christina, the People
moved to "exclude such evidence" on the grounds that
(1) the [*13] photographs were not relevant, and (2) for
purposes of Evidence Code section 352, the prejudicial
effect of such evidence would outweigh its probative
value.
Specifically, the People argued the photographs were
not relevant, and thus should be excluded, because (1)
they would not show whether Christina "consented to
[Wood's] licking her vagina;" (2) the defense "simply
want[ed] to show the photos to the jury to embarrass
and humiliate [Christina];" (3) Wood had "made his
position clear that if [Christina went] forward with the
case he [would] expose her photos to the world and
things [would] get ugly and become a nightmare for
her"; and (4) Wood controlled the camera and took
photographs, which Christina "had no control over," of
parts of her body, including close-ups of her vagina, and
showing the photographs served no purpose "other than
to re-victimize [her]." The People also argued that,
under Evidence Code section 352, the prejudicial effect
of such evidence would outweigh its probative value
because (1) the defense was "attempting to portray
[Christina] in a negative light for posing for the pictures;"
(2) "[t]he fact that she posed for nude and semi-nude
photos, in poses that [*14] he dictated and with props
that he provided to her and other models [did] not equal
the victim consenting to having her vagina licked by the
photographer taking the photos."
b. Hearing on the People's in limine motion: The
defense's six-minute DVD "video" and its "clip" excerpt
of that video
At the hearing on the People's foregoing in limine
motion on December 4, 2007, defense counsel Brian
White indicated that Wood took about 4,200
photographs "in very rapid succession" during the photo
shoot, and those photographs were the "heart" of
Wood's defense. Asserting that this was a "he said she
said" case in which Wood's defense was that he orally
copulated Christina with her consent, White argued that
the photographs depicted Christina's demeanor.
Stating, "I don't really want to go through one by one
4200 photographs," White informed the court that he
had "condensed them all into basically a quick time
video," which was the "whole photo shoot [from]

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2009 Cal. App. Unpub. LEXIS 9959, *14
beginning to end," that "very clearly" depicted Christina's
demeanor and could be shown to the jury in less than
six minutes. White argued that the photographs showed
"absolutely no change in [Christina's] demeanor from
beginning to end," and [*15] depicted her smiling with a
"bright" face and continuing to pose provocatively, "even
after the alleged assault." This unchanging behavior, he
argued, was "inconsistent" with "somebody who had just
been essentially raped. That's the heart of our case."
The court responded that "4200 provocative photos
seems like it might be overkill." Replying that the
photographs were relevant to the issues of Christina's
credibility and whether she gave her consent, White
stated:
"If we're going to go [] one by one through 4200
photographs, I can see the court's going to say
that's overkill. But to have them looked at--I've
talked longer now than the video's going to be. It's
less than six minutes and it shows the whole
shoot."
White also argued that if the court excluded the video,
Wood would be deprived of his due process right to
defend himself and to have effective representation of
counsel.
The prosecutor, Brian Erickson, argued that Wood had
previously intimidated Christina by threatening to show
the photographs to the whole world; Wood was
"continu[ing] to intimidate her by showing her all of
those"; and the six-minute video was "irrelevant to show
consent." Erickson asserted that the video was
[*16] "[not] going to really capture what happened there
anyway" because it would not have captured Wood
coming up to Christina and "put[ting] her in position with
the wardrobe." The photographs were "highly
prejudicial," there was no reason to show Christina
naked, and "at the very least" the number of
photographs shown to the jury "should be limited."
Indicating it had not yet seen the photographs, the court
tentatively determined that some of the post-incident
photographs might be relevant on the issue of
Christina's credibility, "[a]ssuming proper foundation is
laid." The court indicated it did not see the relevance of
showing an "11 or 12 photo a second montage" and
expressed concern that it might prejudice the jury. White
responded that such a ruling would "gut[]" the "heart" of
Wood's defense and would deprive him of his due
process right to present a defense, because the
photographs, "all 4200 of them," are Wood's defense.
Later, the court indicated it had viewed the "roughly six-

minute montage of photos from the photo shoot." The
court also indicated that its "overall feeling" had not
changed very much; in fact, it felt "more strongly about
this"; and it did not see "any [] more relevance [*17] to
the photos indicating consent." The court stated that
seeing Christina "pose in these fashions" would end up
"being cumulative after some dozens of photos," and it
would "inflame passion and prejudice in the jury to the
point where it seems likely they would view [Christina]
as . . . sort of trampy." The court expressed concern that
some of the jurors "could very easily . . . decide the case
on their distaste or disdain for someone who would be
willing to do something so explicit and outside the norm
in some people's view."
The court then made its tentative ruling under Evidence
Code section 352, finding that the "risk of prejudice
would probably substantially outweigh the probative
value because I don't see that much probative value for
most of" the six-minute montage "DVD."
After the jury was selected and sworn, and out of the
presence of the jury, the court revisited the issue of the
admissibility of the DVD, stating, "I haven't concluded
anything, including whether or not we're ultimately going
to need [an Evidence Code section] 402 [hearing]." After
hearing further arguments, and indicating it would
"continue to think about it," the court stated, "I'm just not
at that threshold [*18] where I'm seeing the relevance
outweighing what I see as substantial prejudice because
of the inflammatory or passion-inducing nature of the
photos."
The next day, before the People called their first witness
(Christina), the court agreed to revisit the in limine
motion issue. After hearing argument, the court
indicated that after either Christina's direct examination
or some cross-examination, "depending what she
denies or doesn't deny," it would "need to assess
whether there's anything relevant in the photos as far as
impeachment goes," and thus it would need to conduct
an Evidence Code section 402 hearing "to address the
DVD or the photos to establish whether or not there is
any issue over the sequence or timing of the photos, . . .
or when the incident occurred, and see whether or not
you can lay a foundation for some or all of the photos."
Wood's counsel, White, responded that, without "trying
to work [his] way back to exclude the photographs," he
had a "clip that is basically an excerpt from the video"
that the court had watched the previous day. White
explained that the clip was the series of photos "right
after [Christina] says the incident occurred." White

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2009 Cal. App. Unpub. LEXIS 9959, *18
stated the clip showed
[*19] "her demeanor
immediately after the incident," he did not think there
was a risk of "inflaming the passions," and the clip was
"highly relevant and important for the jury to see." It was
the part of the six-minute video that immediately
followed the series of photographs depicting Christina
wearing the "red and white outfit." White explained that
Christina had testified at the preliminary hearing that the
oral copulation incident occurred during the costume
change when she removed the red and white outfit and
put on a purple bodice outfit.
White then reiterated that, "[a]t a minimum," it was
important for the defense to "show that clip of her right
after because . . . it's directly after the incident and it
shows her demeanor."
The court asked the prosecutor, "[W]hat about that, Mr.
Erickson, as far as the clip described if it was
established that it was the one right after the alleged
incident, the argument that it would be relevant to show
a demeanor inconsistent with someone who has just
been sexually assaulted?"
Indicating he had spoken with Christina, the prosecutor
replied, "Yes, I think that's relevant." He also indicated
he thought Christina would testify that she was still
smiling [*20] and she stayed there for various reasons
after the incident occurred.
The court indicated it was going to bring in the jury, give
the "pre-instructions," hear the opening statements, and
then begin Christina's direct examination. Addressing
Wood's counsel, the court stated:
"And then either during the break or at the end of
the morning or something, we'll try to have a[n
Evidence Code section] 402 [hearing] prior to your
cross-examination of [Christina] regarding the
photos and the clip as an alternative you're
proposing [to] see if you can establish sufficiently
that it's [sic] the ones subsequent to the alleged
incident."
White replied, "Okay."
c. Commencement of trial and the Evidence Code
section 402 hearing
Following a portion of Christina's direct examination, the
court conducted the Evidence Code section 402 hearing
"regarding the potential admissibility" of all or a portion
of the photographs contained in the DVD. The court
received the testimony of Christina and Wood's digital

photography expert David Rivera, who testified as
defense witnesses. The court also heard testimony by
the People's witness, Detective Metz.
Following oral arguments, the court found that "the
foundation for [*21] the DVD . . . has been laid," but
stated, "I still have a problem with this whole DVD being
admitted under the [Evidence Code section] 352
grounds that I set forth earlier." The court asked both
White and Erickson to "think of alternatives to the sixminute DVD being played because I still feel that under
[Evidence Code section] 352 it's unlikely I'd allow it in in
total." The court asked the prosecutor to look at the
sequence of photographs "from the red and white outfit
to the immediately subsequent one, which is the one
[Christina's] wearing in exhibit 'B'."
Defense counsel White indicated he had that sequence
of photographs with him and could "queue it up" for the
prosecutor to view. White stated, "This is the first outfit,
[image No.] 1619, the purple bodice until the end of the
purple bodice. So it's the series that comes right after
the red and white outfit." Counsel then viewed the
sequence of photographs.
d. Continuation of the trial and presentation of
photographs
The next morning, December 6, 2007, the prosecution
continued its direct examination of Christina. During a
recess in her cross-examination, the court again
revisited the People's motion in limine to exclude or limit
[*22] the admission of the photographs. Over the
prosecutor's objection, the court ruled it would allow
defense counsel to "show what you've characterized as
the appearance of masturbation during the session
where the alleged incident occurred, the ones we just
looked at on your laptop, where she is touching herself."
The court reasoned that those photographs were
relevant to Wood's mistake of fact defense that he
reasonably believed Christina had given her consent.
The court also ruled under Evidence Code section 352
that the entire six-minute DVD "video" would not be
admitted into evidence "at this time," explaining that
"[n]othing has occurred that would change my ruling on
that." The court further ruled that Wood would be
permitted to show the photographs of Christina that he
took immediately before the alleged incident
(photographs Nos. 791 through 1618 of the red and
white outfit series) and after the alleged incident (the
purple bodice series) for purposes of showing her
demeanor, and showing that the nature of her poses

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2009 Cal. App. Unpub. LEXIS 9959, *22
were inconsistent with someone who had just been
sexually assaulted; however, the photographs would not
be "sent into the jury room."
Following a recess, defense counsel [*23] stated that,
based on the court's ruling that his proposed "video[ of]
the entire photo shoot" would not be admitted into
evidence, he had prepared a series of redacted
photographs in which "all of the private parts [had] been
redacted out" to "alleviate" the court's previous
concerns, and which were "representative of several
different
costume[s]"
and
showed
Christina's
"demeanor, particularly the face."
When the court asked whether this series of
photographs was intended to show Christina's
"pleasant" and "happy" demeanor, White replied, "Yes."
The court then asked whether White planned on asking
Christina
whether
these
photographs
were
representative of her demeanor during the entire photo
shoot, and White replied, "Yes." After further discussion,
the court ruled, "I'm going to allow them."
During her cross-examination by Wood's counsel,
Christina testified that the oral copulation incident
occurred at the end of the session in which she was
wearing a red-and-white outfit. Defense counsel showed
her 16 photographs (exhibits 6 and H-V that were later
admitted into evidence), which depicted her wearing
different outfits and posing with various props. Christina
acknowledged that exhibit [*24] 6 showed her smiling
while wearing a purple bodice, black panties and
stockings, which was the next outfit she wore after the
incident occurred. When shown the remaining
photographs, Christina acknowledged that she was
smiling in exhibits H through K.
The court then permitted defense counsel White, with
the courtroom lights turned off, to show the jury a series
of photographs that White referred to as Nos. 791
through 1618, which were taken before the incident
occurred and showed Christina wearing the red and
white outfit. Christina agreed that some of the images
depicted her touching her private parts, posing with a
banana, and permitting Wood to position her legs.
Defense counsel then showed what he referred to as a
"video," but which he explained was not a video but a
set of photographs that "[had] been arranged quickly so
it appears to go faster than it is," showing a series of
photographs that Wood took immediately after the
incident occurred. As he was showing the photographs,
Christina admitted that the photographs "captur[ed] [her]
demeanor immediately after th[e] incident occurred."

2. Applicable legal principles
Wood was convicted of misdemeanor sexual battery
under section 243.4(e)(1), [*25] which provides: "Any
person who touches an intimate part of another person,
if the touching is against the will of the person touched,
and is for the specific purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of misdemeanor
sexual battery . . . ."
For criminal liability to attach to a defendant's conduct,
section 20 requires the "union, or joint operation" of a
criminal act and criminal intent. (See also CALCRIM No.
251 ["The crime charged in this case require[s] proof of
the union, or joint operation, of act and wrongful
intent."].) Here, the court properly instructed under
CALCRIM No. 251 that for the jury to find Wood guilty of
the crime of sexual battery, he must have "intentionally
commit[ted]
the
prohibited
act"--the
alleged
nonconsensual oral copulation--with the requisite
"specific intent." That instruction informed the jury that
"[t]he specific intent required for the crime of Sexual
Battery is that the touching was done for the specific
purpose of sexual arousal, sexual gratification, or sexual
abuse." (See § 243.4(e)(1), discussed, ante.)
A defendant's reasonable and good faith belief that a
victim voluntarily consented to the alleged criminal act
[*26] can be a defense to a sexual offense charge.
(People v. Mayberry (1975) 15 Cal.3d 143, 155.) This
defense, often referred to as the Mayberry defense,
"has two components, one subjective, and one
objective." (People v. Williams (1992) 4 Cal.4th 354, 360
(Williams).) To satisfy the subjective component, the
defendant must demonstrate that he "honestly and in
good faith, albeit mistakenly, believed that the victim
consented." (Id. at pp. 360-361.) "In order to satisfy this
component, a defendant must adduce evidence of the
victim's equivocal conduct on the basis of which he
erroneously believed there was consent." (Id. at p. 361,
italics added.) To satisfy the objective component, the
defendant must show that his "mistake regarding
consent was reasonable under the circumstances." (Id.
at p. 361.) Williams explained that, "regardless of how
strongly a defendant may subjectively believe a person
has consented to sexual intercourse, that belief must be
formed under circumstances society will tolerate as
reasonable in order for the defendant to have adduced
substantial evidence giving rise to a Mayberry
instruction." (Id. at p. 361.)
Here, Wood's defense to the sexual battery charged in
count [*27] 1 was his Mayberry defense that he

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reasonably and in good faith, but mistakenly, believed
that Christina consented to his act of oral copulation. To
prevail on this defense, Wood was required to prove
that his allegedly mistaken belief that Christina
consented to his act of oral copulation was (1) honestly
held in good faith based on her own "equivocal"
conduct, and (2) objectively reasonable. (Williams,
supra, 4 Cal.4th at pp. 360-361.)
The United States Constitution guarantees a criminal
defendant "'a meaningful opportunity to present a
complete defense.'" (Crane v. Kentucky (1986) 476 U.S.
683, 690.) The right to present a defense generally
requires that an accused have the opportunity "'to
present all relevant evidence of significant probative
value to his defense.'" (People v. Babbitt (1988) 45
Cal.3d 660, 684, quoting People v. Reeder (1978) 82
Cal.App.3d 543, 553, italics omitted.)
However, "[a] defendant's right to present relevant
evidence is not unlimited" (U.S. v. Scheffer (1998) 523
U.S. 303, 308) and may be restricted in circumstances
where necessary "'"to accommodate other legitimate
interests in the criminal trial process,"'" (ibid.) such as
adherence to standard rules [*28] of evidence. (See
also Taylor v. Illinois (1988) 484 U.S. 400, 410.)
Evidence Code section 352 provides: "The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury."
A trial court has broad discretion in determining whether
to admit or exclude evidence objected to on the basis of
Evidence Code section 352, and rulings under this
section will not be overturned absent an abuse of that
discretion. (People v. Ramos (1997) 15 Cal.4th 1133,
1170 [trial court's exercise of its broad discretion under
Evidence Code section 352 regarding admission of
photographic evidence will not be disturbed on appeal
unless the prejudicial effect clearly outweighs the
probative value of the photographs].)
3. Analysis
Wood maintains that the "center of the bull[']s eye" of his
"mistaken fact" defense were the more than 4,000
photographs he took of Christina, which he asserts
"provided the foundation for his reasonable belief that
she consented to his very minimal and very limited
sexual [*29] touching." He complains that the jury saw
only a "tiny slice" of the photographs. Wood also

contends the court "cut the heart" out of his defense
when it "sliced [the] evidence into one-fifth" by "allowing
a small portion of the photos, and most of those only in
the truncated form of a six minute video" that "wasn't
even allowed to go to the jury during their deliberations."
"If the jury had been allowed to see what [I] saw," Wood
asserts, "they would have concluded that [I] had reason
to believe that she consented to [my] conduct and would
have had a reasonable doubt as to whether . . . [my]
action was criminal."
Wood's conviction of misdemeanor sexual battery as
charged in count 1 must be reversed because the trial
court's ruling excluding the six-minute video (containing
all of the more than 4,000 photographs Wood took
during the photo shoot), thereby limiting the number of
photographs presented to the jury, violated Wood's
constitutional right to present his mistake-of-fact
defense and was an abuse of the court's discretion
under Evidence Code section 352.
As it is undisputed that Christina did not give express
verbal consent, Wood was entitled to present all
relevant evidence of [*30] significant probative value
that would tend to prove that Christina engaged in
"equivocal" nonverbal conduct upon which he allegedly
believed, mistakenly but in good faith and reasonably,
that she consented to the sexual touching. The more
than 4,000 photographs Wood took of Christina, as
contained in the six-minute video, were relevant and of
significant probative value with respect to the factual
issue of whether she engaged in such equivocal
conduct before the sexual touching occurred. Those
photographs were direct evidence of her demeanor and
nonverbal conduct, both before and after the oral
copulation. Thus, as a matter of due process, Wood was
entitled to present those photographs, which were of
critical importance to his defense, to the jury unless the
exclusion of all or some of them was necessary to
accommodate other legitimate interests in the criminal
trial process, such as adherence to standard rules of
evidence like Evidence Code section 352. (See U.S. v.
Scheffer, supra, 523 U.S. at p. 308.)
Here, the court's exclusion of most of those photographs
was not necessary to accommodate other legitimate
interests in the criminal trial process and was an abuse
of discretion under [*31] Evidence Code section 352.
The record shows that at the hearing on the People's
motion in limine to exclude the photographs or limit the
number that could be presented to the jury, Wood's
counsel indicated he did not want to present all of the
photographs "one by one." Rather, he informed the

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court that he had "condensed them all" into a six-minute
"quick time video" of the entire photo shoot from
"beginning to end," which clearly depicted Christina's
demeanor and was the "heart of [the] defense." For
purposes of Evidence Code 352, the presentation of
that short "video" would not have necessitated undue
consumption of time. Its presentation also would not
have created a substantial danger of undue prejudice to
the prosecution, as Christina's own testimony was very
explicit about her nudity and her sexually provocative
poses and use of props during the photo shoot, and the
photographs the court allowed the jury to see were also
sexually explicit.
In sum, the court abused its discretion and denied Wood
a meaningful opportunity to present his Mayberry
defense by excluding the six-minute video containing all
of the photographs Wood took of Christina during the
photo shoot. For the foregoing [*32] reasons, we
reverse the judgment as to count 1 (§ 243.4(e)(1)).
B. Ineffective Assistance of Counsel (Nanny Cam
Videotape)
Also in support of his appeal, Wood next contends his
trial counsel provided ineffective assistance by failing to
introduce into evidence a nanny cam videotape, which
(Wood maintains) showed that Christina reasonably
appeared to consent to the oral copulation. We reject
this contention.
1. Background
At trial, an audio recording of Christina's telephone
conversation with Wood on January 10, 2007, was
played for the jury and the transcript was admitted into
evidence. The conversation took place the day after
Christina received Wood's e-mail warning her she would
"be facing a very costly civil lawsuit from [him]" if she
continued her criminal claims against him and telling her
she should instruct Detective Metz to "back off" if she
wanted to keep her graphic photographs private. During
the conversation, Christina told Wood she was upset
because he licked her without her permission, and
Wood said her "masturbating in front of [him] [was]
basically consent." When Wood said she did not tell him
to stop and did not close her legs, Christina replied, "I
did freeze" for "a [*33] matter of seconds." Wood
chuckled and, revealing that he had secretly videotaped
her during the photo shoot, told her "the video record
would show you having fun for six minutes." (Italics
added.)
When the prosecutor asked Christina whether she had

any idea that Wood was videotaping her during the
photo shoot, she replied, "No, I didn't know." Detective
Metz testified that he was listening on the phone when
Christina made the recorded telephone call to Wood,
and he heard Wood say something about a videotape
showing the incident lasted six minutes. Detective Metz
indicated that Wood's attorney informed him there was a
two-hour videotape, and he (Detective Metz) watched
as the attorney played a minute of it on a computer, but
he was never provided a copy of the video.
During his closing argument, the prosecutor argued that,
"[i]f there was a video of six minutes of [Wood] orally
copulating [Christina], where is it?" Later, the prosecutor
argued that "the defense . . . didn't bring up the sixminute tape, and they don't bring these glaring realities
that [Wood] is a liar."
In a new trial motion, Wood asserted that he had made
a nanny cam video of the first two hours of the photo
shoot and [*34] claimed his trial counsel, White, should
have introduced the video into evidence. Asserting that
White "entered the trial believing that he would be able
to get all the photos of the shoot into evidence and
therefore felt that [he] didn't need the nanny-video-cam,"
Wood claimed that although this "tactical decision" was
likely competent before trial, by the end of the trial "it
became improper for [White] to NOT present the video
cam [evidence] to the jury" because (1) the court denied
White's repeated requests to introduce all the photos
into evidence, and (2) the prosecutor was able to
present evidence and argument that Wood had
"purportedly lied" about the video, and he had
"'manipulated' Christina into succumbing into suggestive
poses as if against her will." In his motion, Wood also
asserted that White did not want to present the nanny
cam video evidence because it would have shown
Wood "providing Christina two shots of alcohol at the
beginning of the shoot."
The People filed written opposition to the motion,
arguing that Wood could not establish a claim for
ineffective assistance of counsel because (1) White had
acted in a reasonably competent manner, and (2) Wood
could not establish [*35] prejudice.
At the July 2008 hearing on Wood's new trial motion, the
prosecutor informed the court that "[t]here's no sound on
the nanny cam." He argued that the defense was
claiming the nanny cam video would refute Christina's
testimony that she "froze" when Wood licked her, but
the video would not support that claim because it did not
show Wood committing the crime, and thus would not

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show "her freezing." The prosecutor also argued that
the video evidence would "strengthen my argument that
[Wood] was, in fact, a liar." Wood's new counsel, Allen
Bloom, stated that "the nanny cam does not directly
show what happened during the vaginal licking, I admit
that." Bloom agreed with the court's statement that the
videotape "stops right before the incident," but
maintained that the video "puts to rest once and for all . .
. any claim by the prosecution that there was some
manipulation . . . of the metadata" and argued the video
established "when [Christina] froze."
With respect to the portion of the telephone recording in
which Wood told Christina that "the video record would
show you having fun for six minutes," the court stated
"it's not true apparently" that the video would "exonerate
[Wood] [*36] on that specific point."
The court then permitted Bloom to elicit testimony from
White. White testified that before the trial began, he
evaluated whether he should present the nanny cam
video, but came to the conclusion that it should not be
presented. White indicated that nothing he heard at trial
caused him to change or reevaluate his trial tactic. On
cross-examination by the prosecutor, White indicated
that one of the reasons he did not want to introduce
evidence of the nanny cam video was that it depicted
Wood giving tequila shots to Christina, who was naked,
and then "squirting some kind of lime juice or something
down her throat after that." White indicated that he felt
the video was prejudicial to Wood. Following additional
arguments, the parties stipulated that the court could
review the video off the record and outside the presence
of counsel and Wood. The court continued the hearing
to a date in August 2008.
At the followup hearing on Wood's new trial motion, the
court indicated it had watched the nanny cam videotape.
The court denied Wood's new trial motion, finding that
White had handled Wood's defense in an objectively
reasonable and competent manner and that Wood had
failed [*37] to establish prejudice.
2. Applicable legal principles
To establish ineffective assistance of counsel, Wood
bears the burden of showing both that counsel's
performance was deficient, falling below an objective
standard
of
reasonableness
under
prevailing
professional norms, and that it is reasonably probable
the verdict would have been more favorable to him
absent counsel's error. (See People v. Hernandez
(2004) 33 Cal.4th 1040, 1052-1053.) "We presume that
counsel rendered adequate assistance and exercised

reasonable professional judgment in making significant
trial decisions." (People v. Holt (1997) 15 Cal.4th 619,
703) We will reverse on the ground of ineffective
assistance of counsel "'only if the record on appeal
affirmatively discloses that counsel had no rational
tactical purpose for his act or omission.'" (People v.
Zapien (1993) 4 Cal.4th 929, 980, italics added.).
Furthermore, in an appropriate case, we may dispose of
an ineffectiveness claim on the ground of lack of
prejudice without determining whether his counsel's
performance was deficient. (Strickland v. Washington
(1984) 466 U.S. 668, 697; In re Fields (1990) 51 Cal.3d
1063, 1079.)
3. Analysis
Applying the foregoing principles, [*38] we conclude
Wood has not, and cannot, establish his claim of
ineffective assistance of counsel. First, assuming for
purposes of this discussion that Wood's trial counsel
(White) provided ineffective assistance by making what
he called his "trial tactic" of not introducing the nanny
cam video into evidence, we conclude Wood is unable
to demonstrate a reasonable probability the verdict
would have been more favorable to him absent White's
ineffective assistance and is thus unable to show
prejudice. As already discussed, Wood's new counsel,
Bloom, admitted at the hearing on Wood's new trial
motion that the nanny cam video "does not directly show
what happened during the vaginal licking," and he
agreed with the court's assumption that the video
"stop[ped] right before the incident." Thus, even if White
had introduced the nanny cam video into evidence, it
would not have refuted the prosecutor's argument that
Wood lied to Christina during the recorded telephone
conversation when he told her that "the video record
would show you having fun for six minutes." Evidence of
the video recording also would not have impeached
Christina's credibility when she testified she froze when
Wood licked her [*39] because the video did not record
the licking incident.
Second, Wood has failed to demonstrate that there
could have been no rational tactical purpose for White's
deliberate trial tactic of not presenting the nanny video,
and thus he has failed to show that White's performance
in failing to introduce the video into evidence was
deficient, falling below an objective standard of
reasonableness under prevailing professional norms.
Had the defense presented the nanny cam video at trial,
the jury would likely have found that Wood falsely told
Christina during the recorded telephone conversation
that "the video record would show [her] having fun for
six minutes" when he orally copulated her. The jury

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would also have learned that Wood gave shots of
tequila to Christina when she was naked and had then
squirted something down her throat during the photo
shoot. The likelihood that the showing of the video
would have been prejudicial to the defense is manifest.
In sum, we reject Wood's contention that his trial
counsel provided ineffective assistance by failing to
introduce the nanny cam videotape into evidence.
C. Ineffective Assistance of Counsel (Character
Witnesses)

error. (People v. Cunningham (2001) 25 Cal.4th 926,
1009.) In determining whether reversal is required under
the "cumulative errors" doctrine, "the litmus test is
whether defendant received due process and a fair trial.
Accordingly, we review each allegation and assess the
cumulative effect of any errors to see if it is reasonably
probable the jury would have reached a result more
favorable to defendant in their absence." (People v.
Kronemyer (1987) 189 Cal.App. 3d 314, 349.)
2. Analysis

In support of both his appeal [*40] and his petition,
Wood also contends (as he did in his new trial motion)
that his trial counsel provided ineffective assistance by
failing to introduce into evidence the testimony of four
female character witnesses whom he had also
photographed in his home and who Wood asserts would
have testified he was "always extremely professional,"
his conduct was "completely appropriate," and he never
made improper advances. We reject this contention.
Given the state of the evidence at trial-- including
Christina's testimony that during the "professional"
photo shoot Wood asked her, "Does the photographer
get some of that?," and his own recorded statement that
her act of masturbation, which Christina said was only
posing, constituted "consent" for his act of vaginally
licking her--Wood has failed to demonstrate that his trial
counsel had no rational tactical purpose for his decision
to not call the women as character witnesses. (People v.
Zapien, supra, 4 Cal.4th at p. 980.) A reasonably
competent defense attorney may have had a valid
tactical reason for not opening up the subject of Wood's
character and his history of using the Internet to
persuade young women to come to his home studio to
participate
[*41] in sexually provocative nude
photography.

Wood contends his conviction of dissuading Christina
from [*42] reporting a crime in violation of section
136.1(b)(1), as charged in count 2, should be reversed
because the court's failure to admit all of the
photographs into evidence, combined with his trial
counsel's failure to introduce into evidence the nanny
cam videotape and present the testimony of the four
female character witnesses, resulted in a denial of his
right to a fair trial with respect to that count. He also
contends his "benign" January 9, 2007 e-mail to
Christina was "[t]he only evidence" supporting count 2;
and the email shows "how measured it was" and
demonstrates that "[h]e never threaten[ed] anything in
the e-mail, except the filing of a civil suit." These
contentions are unavailing.

In support of his appeal, Wood also claims the court's
failure to admit all of the photographs into evidence, his
trial counsel's failure to introduce into evidence the
nanny cam videotape, and his trial counsel's failure to
present the testimony of the four female character
witnesses "impacted directly on the issue of count 2"
and acted to deny him a fair trial. We reject this claim of
cumulative error.

A review of the e-mail, which Christina read to the jury,
shows that it was far from "benign" or "measured." In it,
Wood warned her she should instruct Detective Metz to
"back off" if she wanted to keep "[her] graphic
photographs" private. Wood expressly threatened in the
e-mail to "make public" those sexually explicit
photographs for "the world to see." From this evidence,
any jury could reasonably find that Wood attempted to
dissuade Christina from reporting a crime in violation of
section [*43] 136.1(b)(1). Although we have concluded
that the court's exclusion of the six-minute video
requires the reversal of Wood's count 1 sexual battery
conviction, we have rejected his claims of ineffective
assistance of counsel. Wood has not met his burden of
showing that the court's error in excluding that video
resulted in a denial of his right to a fair trial with respect
to the offense charged in count 2, nor has he shown it is
reasonably probable the jury would have reached a
result more favorable to defendant in the absence of
that error.

1. Applicable legal principles

E. Section 136.1(b)(1)

A series of trial errors, though harmless when
considered independently, may in some circumstances
rise by accretion to the level of prejudicial, reversible

In support of both his appeal and his petition, Wood next
contends
that
section
136.1(b)(1)
is
either
constitutionally flawed, or flawed as instructed, because

D. Cumulative Error

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2009 Cal. App. Unpub. LEXIS 9959, *43
the statute does not have a mens rea requirement. In
his petition, Wood also contends that his trial counsel
provided ineffective assistance of counsel by failing to
request an appropriate jury instruction. We reject these
contentions.
1. Background: Count 2, section 136.1(b)(1), and the
court's instructions
In count 2 of the information, Wood was charged with
"unlawfully attempt[ing] to prevent and dissuade a victim
and witness of a crime[, Christina], from making a report
[*44] of that victimization to a peace officer" in violation
of section 136.1(b)(1), which provides:
"(b) Except as provided in subdivision (c), every
person who attempts to prevent or dissuade
another person who has been the victim of a crime
or who is witness to a crime from doing any of the
following is guilty of a public offense and shall be
punished by imprisonment in a county jail for not
more than one year or in the state prison: [P] (1)
Making any report of that victimization to any peace
officer or state or local law enforcement officer or
probation or parole or correctional officer or
prosecuting agency or to any judge."
At trial, the court instructed the jury under CALCRIM No.
2622 in part as follows with regard to count 2:
"The defendant is charged in Count 2 with
intimidating a witness. [To prove that the defendant
is guilty of this crime, the People must prove that: 1,
The defendant tried to prevent or discourage
[Christina]
from
cooperating
or
providing
information so that a complaint could be sought and
prosecuted, and from helping to prosecute that
action; 2, [Christina] was a witness or a crime
victim; and 3, The defendant knew he was trying to
prevent or discourage [Christina] [*45] from
causing prosecution and intended to do so." (Italics
added.)
The court also instructed the jury under CALCRIM No.
251 on the specific intent required for a conviction of
count 2:
"The crimes charged in this case require proof of
the union or joint operation of act and wrongful
intent. . . . [P] The specific intent required for the
crime of attempting to dissuade a witness from
reporting a crime is that the defendant knew he was
trying to prevent or discourage a witness from
cooperating or providing information so that a
complaint or information could be sought and

prosecuted, and intended to do so." (Italics added.)
2. Analysis
In support of his claim that section 136.1(b)(1) is
constitutionally flawed because it does not have a mens
rea requirement, Wood contends that "[t]he statute does
NOT require that the crime about to be reported must be
legitimate or must be perceived to be legitimate or is
known to the reporter as legitimate or is known to the
'dissuader' as being legitimate." He asserts "[t]he statute
forbids the act of dissuading a witness from ALL reports
of a crime, apparently even if the report is mistaken or
knowingly false." These contentions are unavailing.
In People [*46] v. Young (2005) 34 Cal.4th 1149, 1210
(Young), which upheld the defendant's conviction of
intimidating a witness (§ 136.1) for punching the victim
in the face in a holding cell and telling him "[y]ou
snitched on me," the California Supreme Court
explained that "[t]he crime of intimidating a witness
requires proof that the defendant specifically intended to
dissuade a witness from testifying." In Young, the high
court concluded that the trial court's instruction on the
offense of witness intimidation was erroneous because
it omitted the requisite language that the defendant
specifically intended to prevent or dissuade the victim
from testifying at trial, but also concluded (for reasons
not pertinent here) that the instructional error was not
prejudicial. (Young, supra, at p. 1211.)
Here, like the crime of intimidating a witness discussed
in Young, the crime of attempting to prevent and
dissuade a victim of a crime from making a report of that
victimization to a peace officer in violation of section
136.1(b)(1) does have a mens rea requirement, i.e., the
specific intent to dissuade the victim from reporting her
victimization to "any peace officer or state or local law
enforcement officer [*47] or probation or parole or
correctional officer or prosecuting agency or to any
judge." (§ 136.1(b)(1), discussed, ante; see Young,
supra, 34 Cal.4th at p. 1210.)
In this case, a review of the instructions the court gave
to the jury regarding count 2 shows that the court, using
standard Judicial Council of California Criminal Jury
Instructions (2006-2007) (CALCRIM) instructions,
properly instructed that in order to convict Wood of
unlawfully attempting to prevent and dissuade Christina
as a victim and witness of a crime from making a report
of her victimization to a peace officer or law
enforcement agency (§ 136.1(b)(1)), the jury was
required to find beyond a reasonable doubt that at the
time of his alleged criminal act, Wood knew he was

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trying to prevent or discourage Christina from causing
prosecution, and he intended to do so. With respect to
the mens rea element of the offense charged in count 2,
the constitution requires nothing further. We thus reject
Wood's claims of constitutional and instructional error
and his related claim of ineffective assistance of
counsel, as they pertain to his conviction of count 2.
F. Sufficiency of the Evidence
Last, Wood also contends in support of [*48] his appeal
that the evidence was insufficient to prove he violated
section 136.1(b)(1). We reject this contention.
1. Applicable legal principles
When assessing a challenge to the sufficiency of the
evidence, we must view the evidence most favorably to
the prosecution and determine whether any rational trier
of fact could have found the elements proven beyond a
reasonable doubt. (Jackson v. Virginia (1979) 443 U.S.
307, 319.) "[T]he court must review the whole record in
the light most favorable to the judgment below to
determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of
solid value--such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt."
(People v. Johnson (1980) 26 Cal.3d 557, 578.)
Insofar as we are required to interpret the applicable
statutory provisions, we apply a de novo standard of
review. (See Connerly v. State Personnel Bd. (2006) 37
Cal.4th 1169, 1175.)
2. Analysis
Wood contends that section 136.1(b)(1) should be
interpreted narrowly as prohibiting "the act of attempting
to stop the initial reporting of the crime itself." (Italics
added; original italics omitted.) He claims "there [*49] is
no evidence that [he] attempted to prevent Christina
from reporting the occurrence of the crime," and all he
did was "contact Christina once after the report had
already been made, and advise her that she made a
false report" and that "he was going to sue her in a civil
court, because it was his belief that no crime had
occurred." These contentions are unavailing.
As already noted, Christina testified that she received
an e-mail from Wood in January 2007 warning her it
was a crime to file a false police report, she would "be
facing a very costly civil from [him]" if she continued her
criminal claims against him, and she should instruct
Detective Metz to "back off" if she wanted to keep her
graphic photographs private. Christina also testified that

she felt "threatened" after she received that e-mail.
Christina's testimony was sufficient to sustain Wood's
conviction of count 2, as it supports a reasonable finding
that Wood was attempting to pressure Christina into
withdrawing her report to the police that she was the
victim of a sex crime. Wood ignores the obvious point
that a defendant's act of using a threat to persuade a
victim or witness to withdraw a report she has made to
the [*50] police is tantamount to using a threat to
dissuade a victim or witness from filing such a report.
Wood relies on People v. Fernandez (2003) 106
Cal.App.4th 943 for the proposition that the act of
attempting to persuade a victim or witness to withdraw
her complaint is "an entirely different act" that is not
covered by section 136.1(b)(1). Wood's reliance on
Fernandez is unavailing. That case involved a
defendant's request that a witness testify untruthfully at
the defendant's preliminary hearing. (Fernandez, supra,
106 Cal.App.4th at pp. 945-946.) The Court of Appeal
reversed the defendant's conviction of dissuading a
witness in violation of section 136.1(b)(1), holding that
although there was ample evidence that the defendant
intended to influence the witness's testimony at the
preliminary hearing, "there was no evidence that he
intended to prevent or dissuade [the witness] from
making a 'report' as required by section 136.1[](b)(1)."
(Fernandez, supra, at p. 951.)
DISPOSITION
The petition is denied. The judgment of conviction on
count 1 and related sentencing orders, such as the
order requiring Wood to register under Penal Code
section 290 as a sex offender, are reversed. In all other
[*51] respects, the judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.

End of Document

Coleman Saunders