The PEOPLE, Plaintiff and Respondent, v. James david DOMINGUEZ, Defendant and Appellant No. D041946 Court of Appeal, Fourth District, Division 1, California Review Denied August 11, 2004 Decided On May 13, 2004 (Super.Ct.No. SCE217892) APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Reversed. Counsel Office of The State Attorney General, San Diego, CA, for Plaintiff-respondent. Patrick Morgan Ford, San Diego, CA, for Defendant-appellant. Panel members: Benke, Patricia D., Haller, Judith L., McDonald, Alex C. Benke, Patricia D., Justice Opinion Not Officially Published (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115) *1 James David Dominguez was found guilty of the continuous sexual abuse of a child (Pen.Code,[1] § 288.5, subd. (a)) and possession of child pornography (§ 311.11, subd. (a)). Dominguez was sentenced to a prison term of 12 years. He appeals, arguing the trial court erred in the admission and exclusion of evidence, in refusing to sever counts for trial and in failing to instruct concerning the requirement of jury unanimity with regard to both charges. He additionally argues the evidence was insufficient to support conviction on the possession of child pornography offense and that the prosecutor committed misconduct. DISCUSSION A. Prosecution Case 1. Sexual Abuse Appellant lived with his wife Kim and three children, Danielle, Tyler and Spencer, in Lakeside. At the time of trial Danielle was 17 and her brothers were three and four years younger. Kim worked as a nurse, was frequently on call at night and often left appellant alone with the children. On an evening, around April 1998, shortly before Danielle's 13th birthday, appellant entered her room while she was sleeping and stroked her leg and rubbed her vagina. Confused, Danielle said nothing. The next night Danielle went to her father's room and told him she did not like what he had done and asked he not do it again. Nonetheless, a few nights later appellant again went to Danielle's room and sexually molested her. As time went on appellant went to Danielle's room more frequently. Appellant would digitally penetrate and orally copulate her. In August 1998 appellant raped Danielle on two occasions. Danielle later told appellant she hated what he had done and did not want him to do it again. The sexual abuse stopped. In the spring of 2000 appellant told Danielle he was sorry for what he had done. He told her he could go to jail and asked her not to tell anyone about his acts. Danielle told appellant she did not want him to go to jail. Concerned it would be highly disruptive to her family, Danielle told no one that appellant had sexually abused her. Kim as well as Danielle's maternal aunt and uncle noticed a change in Danielle's personality after the summer of 1998. She became temperamental, displayed anger, became messy and gained weight. In the summer of 2001 Kim asked Danielle if appellant had ever touched her inappropriately. Still afraid of the consequences of admitting appellant's conduct, Danielle told her “no.” Shortly thereafter, Danielle overheard a conversation in which appellant referred to both Kim and Danielle as “sluts.” Hurt, Danielle called a friend. Eventually, she told the friend that appellant had sexually abused her. The friend told appellant to tell her mother. On August 16, 2001, Danielle decided to tell her boyfriend about the sexual assaults and did so one evening by computer “e-mail.” Danielle's boyfriend came to her house to tell Kim about the assaults. Appellant interrupted the two and escorted the boyfriend from the house. While he did so Kim confirmed with Danielle that the sexual assaults had occurred. The next day Kim reported the assaults to Child Protective Services (CPS). On the advice of counsel appellant refused to speak with a social worker from CPS. *2 The next day Kim served appellant with divorce papers. Appellant moved out of the family home on August 20, 2001. 2. Child Pornography Appellant owned a computer that was kept in the master bedroom. The children were allowed to use it. At times the children noticed pornographic images “pop up” suddenly on the monitor. The computer was seized by the police on August 28, 2001, and later examined by a forensic computer expert. The expert found that 10 Internet searches were performed on the computer on the evenings of May 12 and 24, 2001, using search terms suggesting an intent to locate pornography and child pornography. On the computer the expert also found 20 deleted “favorites folders,” i.e., devices for returning quickly to previously visited Internet sites, dealing with various types of pornography, many having titles suggesting child pornography. Twelve of the folders where created on July 3, 2001, most at 10:25:38 p.m. Three were created on June 21, 2001, again at 11:24:28, p.m. Three more were created June 3, 2001, and the remaining folders were created on May 15, 2001. The computer's print spool, which stores information concerning items printed by the computer, revealed that around 10:30 p.m. on July 17, 2001, there was a request to print a picture from the “Underage Club.” On the computer the expert found approximately 700 deleted, i.e., images removed from the computer's active memory but still stored in the computer, pornographic pictures, 32 of which constituted child pornography. The images appeared to have been downloaded from the Internet but it was impossible to determine when they were downloaded or when they were deleted from the computer's active memory. One of the images was a banner advertisement entitled “Dad and Daughter,” which depicted two people having sexual intercourse. No dates where found for when these pictures were downloaded to the computer. Two viruses were found on the computer, neither had anything to do with searches, favorites files, the print spool or the pornographic images found on the computer. Child pornography is generally not designed to “pop up” with adult pornography since to do so risks having the site shut down by law enforcement. B. Defense Case Appellant testified that he did not sexually molest Danielle. He believed the allegations were part of a conspiracy between Kim and Danielle to gain control of the family home. Appellant did not place child pornography on his computer. He is not knowledgeable about computers, he did not use the computer late at night and does not know what a “favorites” file is. He had no explanation for how child pornography got on his computer and denied searching Internet sites for such material. Appellant testified that he could not have conducted the searches for child pornography on the evening of May 24, 2001, because he was at a union meeting. Union members testified appellant was present at the meeting on the evening of May 24, 2001. *3 A computer expert testified that because several of the favorite files were added to appellant's computer at the exact same time, it was possible they were added by a computer program and noted that searches may be run without the computer user authorizing them. DISCUSSION A. Appellant's Computer Appellant offers a series of arguments dealing with information found on his computer. Thirty-two images that had been “deleted” from appellant's computer were alleged by the prosecution to be child pornography and were the basis for the charge in count six that appellant possessed such illegal contraband. Additional material found on the computer, e. g., search terms entered on the computer that appeared to be attempts to locate child pornography, and other evidence was offered to prove that it was appellant who downloaded the illegal images. The material found on appellant's computer was also admitted pursuant to Evidence Code section 1101, subdivision (b), to prove his intent and motive in sexually molesting Danielle. With regard to the possession of child pornography charge, appellant argues there was insufficient evidence he possesses the material or that the material was child pornography. He argues the court erred in failing to instruct the jury that it had to unanimously agree that at least one of the 32 images was child pornography. Appellant contends the court erred in admitting evidence of search terms found on the computer, favorites lists and print spool notations since the evidence was irrelevant and more prejudicial than probative. Finally, he argues the charge of possession of child pornography was time barred. With regard to the admission of computer evidence to prove intent and motive as to the sexually molestations counts, appellant argues the court erred in admitting the evidence since intent and motive were not in issue and in any case the evidence was more prejudicial than probative. Appellant argues the trial court erred in failing to give a cautionary instruction concerning the proper use to which such evidence could be put. In a related argument appellant argues the trial court erred in denying his motion to sever the molestation counts from the possession of child pornography count. 1. Background Appellant was charged with four counts of committing a lewd and lascivious act upon the body of a child (§ 288, subd. (a)), one count of the continuous sexual abuse of a child (§ 288.5, subd. (a)) and with one count of possession of child pornography (§ 311.11, subd. (a)). By a motion in limine appellant asked the trial court to exclude material found on his home computer. Appellant also asked that the molestation counts be severed from the child pornography count. Although the matter is somewhat obscure since important parts of the discussion of these and other matters was not reported, it appears the trial court denied the motion to sever. At a hearing on the motion to exclude the computer evidence, an expert testified that he found a series of manual searches conducted on appellant's computer on the evening of May 24, 2001, that appeared to be attempts to locate child pornography. The expert also found “cookie files,” i.e., information placed on a computer by accessed Websites to make return to those sites quicker, that appeared to be from sites dealing with child pornography. Also on the computer were deleted, i.e., information no longer in the computer's active memory but still physically in the computer, “favorite files,” i.e., files placed on a computer to allow easy access to Websites, that appeared related to child pornography sites. The expert also found approximately 700 deleted sexually related images on the computer, 45 of which appeared to deal with children. On the computer's print spool, i.e., a file that lists items printed off the computer, the expert found one entry that appeared to relate to child pornography. *4 A defense computer expert testified concerning the several possible ways in which unsought information could be placed in a computer's memory and in particular how the pornography-related information on appellant's computer might have been placed there. The prosecutor argued that in looking at the material on appellant's computer it was clear someone was using it in an attempt to access child pornography. Defense counsel argued that with regard to the charge of possession of child pornography there was no evidence concerning when the subject images on appellant's computer were downloaded, accessed or deleted. Thus, the prosecution could not prove appellant's possession of them came within the statute of limitations for that offense. Counsel noted there were no pornographic images in the active memory of the computer. Counsel argued the titles of the sites found in the favorites file on appellant's computer were highly inflammatory. The court stated it would allow admission of the favorites files since the user of the computer clearly created them and they were held in the computer's active memory. The court noted there was evidence that these sites were accessed in July and August 2001, a period that came within the statute of limitations for the possession of the child pornography charge. The court allowed admission of the print spool data since it showed the computer user printed child pornography photographs. The court also admitted the evidence indicating that a user of the computer had searched the Internet for sites involving child pornography. The court, however, excluded the evidence concerning “cookie files” on the computer. The trial court indicated that to find appellant guilty of possession of child pornography, the jury had to find him guilty beyond a reasonable doubt. However, in order to use such possession as a factor showing appellant's intent or motive under Evidence Code section 1101, subdivision (b), it was only necessary the jury find such possession by a preponderance of the evidence. The court stated such a division of standards of proof would be too difficult for the jury to apply and it would require the jury find beyond a reasonable doubt appellant possessed the contraband before it used the evidence for any purpose.[2] Counsel also argued the evidence should not be allowed as to counts 1 through 5 because it was more prejudicial than probative. The court excluded the cookies evidence, excluded some particular pieces of evidence and limited the use of others but in general ruled the computer evidence admissible over appellant's Evidence Code section 352 objection. No instructions were given the jury concerning the use of other sex crimes evidence or character evidence. The prosecutor argued to the jury that 32 images found in the inactive memory on appellant's computer were child pornography. In attempting to prove that it was appellant who downloaded those images and, thus, possessed them, the prosecutor noted, among other evidence, the searches performed on the computer for child pornography, the content of the printer spool and the sex-related sites included in the favorites list. The prosecutor noted the dates and times associated with that computer activity and asked the jury to infer from such evidence that it was appellant who was responsible for such activity and ultimately for downloading the child pornography. *5 The prosecutor also argued the jury could use the evidence that appellant was searching for and downloading child pornography and material concerning incest as evidence of his intent and motive in sexually molesting Danielle. The prosecutor told the jury appellant looked for child pornography because he was interested in it. The prosecutor did not discuss the exact intent relevant to the molestation charges to which the computer evidence related nor what motive it tended to prove. The prosecutor made no argument that if the jury found appellant guilty of possession of child pornography it could use such evidence, pursuant to Evidence Code section 1108, to conclude appellant had a propensity to commit the molestations offenses charged in counts 1 through 5. 1. Respondent's Concession As to the possession of child pornography charge, respondent concedes that the trial court erred prejudicially when it failed to instruct that the jury was required to agree unanimously that at least one of the images found on appellant's computer was child pornography. We agree with respondent's position. (See People v. Brown (1996) 42 Cal.App.4th 1493, 1499, 50 Cal.Rptr.2d 407.) Appellant's conviction for that offense is reversed. Respondent's concession does not eliminate the need to deal with some issues raised concerning the child pornography offense. Appellant contends the evidence was insufficient to support the charge. If we agree, appellant cannot be retried on that offense and, therefore, it is proper we address the issue. (See People v. Hill (1998) 17 Cal.4th 800, 848, 72 Cal.Rptr.2d 656, 952 P.2d 673.) In a later section of this opinion we also reverse appellant's conviction for continuous sexual abuse of a child. We, therefore, deal with issues that may arise on retrial. 2. Severance Appellant argues the trial court erred in denying his motion to sever the child molestation counts from the possession of child pornography count. He contends the offenses did not qualify for joinder under section 954 and that even if they did, trying them together was highly prejudicial. a. Law Section 954 states that “two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes or offenses” may be joined for trial. Offenses committed at different times are nonetheless connected in their commission for the purposes of section 954 when they are linked by common element of substantial importance. (People v. Valdez (2004) 32 Cal.4th 73, 119, 8 Cal.Rptr.3d 271, 82 P.3d 296.) Crimes are of the same class when they possess common attributes, e .g., assaultive offenses or crimes against property. (People v. Grant (2003) 113 Cal.App.4th 579, 586, 6 Cal.Rptr.3d 560; People v. Leney (1989) 213 Cal.App.3d 265, 269, 261 Cal.Rptr. 541.) Offenses properly joinable under section 954 may be severed if trying them together would prejudice the defendant. In assessing prejudice we consider whether the evidence as to each offense is cross admissible, whether one of the charges is likely to inflame the jury, and whether one case is weaker than the other such that consideration of the weaker might be unfairly affected by trying it with the stronger. (People v. Valdez, supra, 32 Cal.4th at pp. 119-120, 8 Cal.Rptr.3d 271, 82 P.3d 296.) *6 Whether offenses are properly joined under section 954 is a question of law which we review de novo. The decision whether properly joined charges should be severed to avoid prejudice is a matter of discretion and a decision in that regard will not be reversed absent a clear showing of abuse. (People v. Cunningham (2001) 25 Cal.4th 926, 984, 108 Cal.Rptr.2d 291, 25 P.3d 519.) b. Discussion Respondent does not, we think properly, argue that the child molestation and possession of child pornography charges are of the same class. They involve very different offenses against very different victims. Respondent does argue the offenses could be properly joined since they are linked by common elements of substantial importance, specifically the crimes were alleged to have occurred at appellant's residence, generally at night, and in this case, both involved deviate sexual interest in minors. It does not appear the common elements test is a demanding one. (See generally People v. Leney, supra, 213 Cal.App.3d at p. 271, 261 Cal.Rptr. 541; Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722-723, 86 Cal.Rptr. 713 .) While in this case the offenses are charged to have occurred years apart, they nonetheless share important common elements, location and motivation and we conclude they were properly joined under section 954. The question that remains is whether the trial court abused its discretion in denying appellant's motion to sever on the ground of prejudice. Both offenses were inflammatory in their own right, the prosecution's case as to both offenses had strengths and weaknesses and neither was greatly stronger than the other. Still, there were dangers in trying the misdemeanor offense of possession of child pornography with the more serious child molestations charges. The verdict on the molestation charges turned ultimately on a credibility contest between appellant and Danielle. If the jurors believed appellant was in possession of child pornography, they might conclude appellant was prone to commit sex offenses against children and find such fact corroborative of Danielle's testimony. An important factor then in deciding whether the trial court abused its discretion in denying the motion to sever is the admissibility of evidence of appellant's possession of child pornography on the molestation counts. We turn to that issue. 3. Character Evidence Appellant argues the trial court erred in admitting, pursuant to Evidence Code section 1101, subdivision (b), evidence that appellant possessed child pornography and that he used his computer to search for child pornography. a. Law Evidence Code section 1101, subdivision (a), excludes evidence of a defendant's character to prove his or her conduct on a specific occasion. However, character evidence may be admitted under Evidence Code section 1101, subdivision (b), if relevant to prove some fact other than the defendant's character-such as intent, identity, or that the defendant acted pursuant to a common design or plan. (See People v. Balcom (1994) 7 Cal.4th 414, 422, 27 Cal.Rptr.2d 666, 867 P.2d 777.) *7 To be relevant on the issue of intent, and, presumably, motive, uncharged crimes need only be sufficiently similar to a charged offense to support the inference that the defendant probably harbored the same intent in each instance. A higher level of similarity is required to make prior acts relevant on the issues of prior plan or scheme or identity. (People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169.) Assuming evidence of an uncharged offense is relevant on the issue of intent, it may nonetheless be excluded if its admission would be more prejudicial than probative. (Evid.Code, § 352, People v. Kipp, supra, 18 Cal.4th at p. 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169.) On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 are reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.App.4th 610, 637.) Evidence Code section 1108 allows admission, in a criminal action in which the defendant is accused of one of a list of sexual offenses, of evidence of the defendant's commission of another listed sexual offense that would otherwise be made inadmissible by Evidence Code section 1101, subdivision (a). Thus, evidence of another sexual offense is admissible to prove that appellant has a propensity to commit a charged sexual offense. Both the molestation offenses and possession of child pornography offense charged against appellant are offenses listed in section 1108, subdivision (d)(1)(A). The admission of such evidence may be excluded under Evidence Code section 352, if found to be more prejudicial than probative. (Evid.Code, § 1108, subd. (a).) b. Analysis We first reject respondent's argument that the evidence appellant possessed child pornography and used his computer to search for such material was admitted as evidence of propensity to commit child related sex crimes pursuant to Evidence Code section 1108. While it appears the prosecution initially suggested such bases for admission of the computer evidence, the trial court denied admission on that basis, the prosecution did not make a propensity argument to the jury, no instructions were given on propensity evidence, and in its response to appellant's motion for new trial the prosecution specifically stated that the computer evidence was not admitted for that purpose. Respondent suggests there were two proper bases for admitting the evidence under Evidence Code section 1101, subdivision (b), first to show a common scheme or plan and second to prove the specific intent elements of both child molestation and continuous sexual conduct with a child offense. Respondent's claim that evidence of appellant's possession of child pornography was admissible to prove a common scheme or plan is meritless. Evidence of a common scheme or plan proves not “the defendant's intent or identity but rather ... that the defendant engaged in the conduct alleged to constitute the charged offense.” (People v. Ewoldt (1994) 7 Cal.4th 380, 394, 27 Cal.Rptr.2d 646, 867 P.2d 757, fn. omitted.) In order to demonstrate that the charged and uncharged acts are part of the same plan or scheme, “the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.) *8 The common scheme or plan basis for admitting evidence of uncharged acts is applicable to sex offenses. “[A]lthough alleged sex offenses committed with persons other than the prosecuting witness are often unreliable and difficult to prove, nevertheless such evidence is admissible to show a common design or plan where the prior offenses (1) are not too remote in time, (2) are similar to the offense charged, and (3) are committed upon persons similar to the prosecuting witness.” (People v. Thomas (1978) 20 Cal.3d 457, 465, 143 Cal.Rptr. 215, 573 P.2d 433.) The computer evidence fails each of these criteria. It is impossible to determine when the pornographic images were downloaded to appellant's computer. The computer activity, e.g., the searches that could be dated, occurred in midyear 2001. The charged sexual molestation offenses occurred over a six-month period beginning in April 1998. The charged and uncharged activity lacks a meaningful temporal relationship. The charged and uncharged offenses are not similar. While both may involve a deviant interest in children and involve in one respect or another incest, one is an assaultive offense, the other a possession of contraband offense. The offenses have very different victims. The charged offense has a specific child victim. Society in general is the victim of the possession of pornography offense. The prosecutor did not seek and the trial court properly did not admit the computer evidence to prove that it and the charged molestation offenses were part of some common scheme or plan. We turn then to the basis for which the computer evidence was admitted, to prove appellant's intent and motive in committing the molestation offenses. Evidence of motive, i.e., a cause or incitement to action, is generally admissible in criminal cases and the commission of other acts and offenses may show its existence. (People v. McDermott (2002) 28 Cal.4th 946, 999, 123 Cal.Rptr.2d 654, 51 P.3d 874.) Evidence of other acts and crimes may also be used to prove the intent element of a charged offense. (Evid.Code, § 1101. subd. (b).) The specific intent element of child molestation as defined in section 288, subdivision (b), is the intent to arouse or appeal to or gratify the lust, passion or sexual desires of the defendant or the victim. The crime of continuous child molestation as defined in section 288.5, subdivision (a), requires either the commission of at least three lewd and lascivious acts with the above intent or three acts of “substantial sexual conduct” within the meaning of section 1203.066, subdivision (b). That subdivision describes particular sex acts but requires no specific intent. Here, the prosecution's theory was that if the jury concluded appellant performed computer searches seeking child pornography and downloaded images related to such activity, it suggested a deviant sexual interest in children that explained his motive and intent in sexually assaulting Danielle. We find this theory and the trial court's admission of the computer evidence to show motive and intent highly troubling. *9 Assuming that such evidence was relevant to the issue of intent and motive, why was it needed? While it is certainly the case that appellant did not concede the issue of intent, in light of his defense that he did nothing and in light of the unambiguous nature of the acts Danielle claimed occurred, the issue of intent and motive did not exist in any realistic sense. The trial court, therefore, allowed highly inflammatory evidence to be admitted to prove an issue about which there was no meaningful dispute. Since the computer evidence was clearly more prejudicial than probative, it was an abuse of discretion to admit it. In light of our conclusion that the computer evidence was inadmissible under Evidence Code section 1101, subdivision (b), we conclude that the trial court also erred in refusing appellant's motion to sever the molestation charges from the possession of pornography charge. We further conclude those errors were prejudicial. In the final analysis the molestation charges created a credibility contest between appellant and Danielle. There was no corroborating physical evidence, the charges were made at a time when there was deep emotional division in the family. Had the evidence of appellant's possible use of his computer to search for matter related to child pornography and his possession of such material not been admitted, it is reasonably probable a verdict more favorable to the defense would have been returned. (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) The conviction in count 5, continuous sexual abuse of a child, is reversed.[3] B. Sufficiency of Evidence Appellant argues that for a variety of reasons the evidence was insufficient to support his conviction for possession of child pornography. In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Brown (1995) 35 Cal.App.4th 1585, 1598, 42 Cal.Rptr.2d 155.) Appellant notes the alleged child pornography found on his computer was located in the machine's inactive memory and could be retrieved only by the use of special programs that he did not possess. Appellant notes, and the jury was instructed, that possession is of two types, actual, i.e., the person knowingly exercised direct physical control over a thing, or constructive, i.e ., a person knowingly exercised control over or the right to control a thing, either directly or through another person. The prosecution's offered evidence supporting a theory that all of the pornography related images, searches and favorites found on appellant's computer were the result of searches conducted by appellant that resulted in child pornography being intentionally and knowingly downloaded to the active memory of his computer. He, thus, was in actual possession of those images at the time they first appeared on his machine. The fact that the evidence of that possession was the result of a forensic examination of the inactive memory of his computer is meaningless. *10 Appellant argues that even if the evidence was sufficient to find that appellant possessed the images found on his computer, those images as a matter of law were not pornographic. Section 311.11, subdivision (a), makes unlawful the possession of any image the production of which involved the use of a person under the age of 18 years knowing the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct as defined in section 311.4, subdivision (d). Section 311.4, subdivision (d), defines sexual conduct as any of the following whether actual or simulated, “sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestially, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd and lascivious act as defined in section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” The section requires that the person depicted in the image be under 18 years of age and be personally engaged in actual or simulated sexual conduct. A finder of fact may rely on the outward appearance of a subject in determining age. (People v. Kurey (2001) 88 Cal.App.4th 840, 847-848, 106 Cal.Rptr.2d 150.) We have reviewed the 32 images taken from appellant's computer that the prosecution alleges constituted child pornography within the meaning of section 311.11, subdivision (a). Some of those images clearly do not satisfy either the age or sexual conduct element of the offense. Some, however, could reasonably be found to satisfy those elements. Appellant also argues the evidence was insufficient to prove that the alleged offense came within the statute of limitations. There is no evidence concerning when the 32 images were accessed, downloaded or placed in the computer's inactive memory. The information charged the possession offense occurred on or about January 1, 2001, through August 20, 2001. The offense of possession of child pornography has a one-year statute of limitations. (§ 802, subd. (a) .) The State must prove by a preponderance of the evidence that the possession occurred within one year of the commencement of the prosecution. (Id.; People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 27, 134 Cal.Rptr. 784, 557 P.2d 75; People v. McGill (1935) 10 Cal.App.2d 155, 159, 51 P.2d 433.) Based on the appellate record the prosecution commenced no later than December 13, 2001. (§ 804, subd. (b).) The prosecution conceded there was no direct evidence that any of the 32 allegedly pornographic images were in the active memory of appellant's computer between December 13, 2000, and December 13, 2001. It was the prosecution's theory, however, that since there was evidence appellant's computer was used by him during that period to find such materials, the jury could reasonably infer that some or all of the images were on his computer during the operative dates. We agree and conclude the evidence was sufficient to find that the possession offense was not time barred. C. Evidentiary Issues *11 Appellant makes a series of arguments about trial court rulings admitting prosecution evidence and excluding defense evidence with regard to the continuous sexual abuse charge that he contends were erroneous. 1. Victim's Prior Sexual Experience Appellant argues the trial court erred in excluding evidence that as a small child Danielle was molested at a preschool and that she had recently become sexually active with her boyfriend. a. Background At a hearing before trial, defense counsel asserted that when Danielle was two or three years of age she had been molested at a preschool. The school was sued and Danielle received a judgment that at age 18 began paying her a stipend. Counsel told the court that the records of the molestation had been destroyed and that consequently his expert was unable to conclude whether the earlier sexual abuse had any continuing effect on Danielle. Counsel stated he did not, therefore, intend to call an expert to testify on the matter. Counsel stated, however, an argument could be made that Danielle, “in the back of her mind,” could believe that if she accused her father of molesting her she might be rewarded. Counsel stated he knew this was “stretching it.” The prosecutor responded that Danielle did not remember being molested as a child and the earlier instance of sexual abuse was irrelevant. The court stated that unless an expert testified that the early incident could in some way affect Danielle such that the present accusations were a product of the earlier molestation, it would not admit the evidence. Defense counsel stated that when appellant was first accused by Danielle's boyfriend of molesting her, appellant stated that Danielle was thinking about the earlier molestation. Counsel argued that as part of appellant's reaction to being accused of child molestation the statement was admissible. The prosecution argued the statement was self-serving hearsay. Counsel argued appellant should be able to evidence that when first confronted with the allegation that he had molested Danielle, he stated she must have been reliving the earlier acts of abuse. The trial court ruled appellant could evidence that he denied the allegation but that any statement concerning an earlier molestation was hearsay. At the hearing on the in limine motions the prosecution stated its concern that the defense might wish to explore Danielle's relationship with her boyfriend. Defense counsel stated it would offer no such evidence. Counsel did state that Danielle would be examined concerning a letter to her boyfriend in which she stated appellant believed she was a “slut.” The court stated such inquiry was proper. b. Analysis While appellant argues on appeal that he sought to admit evidence of Danielle's sexual activity with her boyfriend, that was not in fact his position at trial. Counsel stated the defense did not intend to present such evidence and the matter is waived. In any event, appellant offers no explanation for how such evidence would be relevant. *12 The trial court correctly concluded that appellant's statement when confronted with Danielle's allegations that she must be reliving the earlier molestation was hearsay. The statement was a psychological evaluation that depended on the truth of the matter asserted, i.e., that Danielle was molested at some point in the past. The defense might have proved the fact of the earlier molestation by other means but without expert testimony concerning its possible effect on the present allegations, the evidence was irrelevant. 2. Behavioral Changes Appellant argues the trial court erred in admitting evidence that about the time Danielle was molested by appellant she exhibited behavioral changes. a. Background Prior to trial the court and parties discussed the prosecution's intent to present evidence that around the time Danielle claimed to have been sexually abused by appellant, she underwent a change in personality. The defense objected to the introduction of such evidence on the ground it was irrelevant and more prejudicial than probative. The prosecutor argued that Danielle's fear of being left alone with appellant and her expressed anger with him was very relevant. The prosecutor acknowledged that Danielle was 13 at the time and that teenagers can be rebellious and difficult in general. Defense counsel argued there was no expert testimony that such behavior in a 13-year-old was indicative of molestation. The trial court concluded that while it was true that teenagers go through periods of change as a natural part of their development, it was possible that some of the changes in behavior Danielle which exhibited were the result of sexual abuse. The court stated the issue was a matter for argument by the parties and decision by the jury. b. Analysis The trial court ruled correctly. It is certainly the case that teenage behavior is variable and subject to inexplicable changes. Still, traumatic events also cause behavioral changes. These are matters of common human understanding and while an expert might have been useful on the subject, a jury is capable on it own of evaluating the nature of behavioral changes. There was at least some probative value in evidencing Danielle's behavioral changes and little prejudicial effect. The evidence was properly admitted. D. Unanimity Instruction Appellant argues the trial court erred in failing to instruct that the jury was required to agree unanimously on the acts underlying the section 288.5 continuous sexual abuse charge. There is no such requirement. (People v. Gear (1993) 19 Cal.App.4th 86, 89-94, 23 Cal.Rptr.2d 261.) The judgment is reversed. WE CONCUR: HALLER and McDONALD, JJ. Footnotes [1] All further section references are to the Penal Code unless otherwise indicated. [2] It is difficult at times to understand exactly what the court and parties were saying during the argument portion of the hearing. As noted the parties and trial court discussed these matters off the record and then the parties made their arguments and the court its rulings in light of those discussions. Unfortunately, this court was not privy to those talks and it makes understanding the parties' positions and the trial court's rulings difficult. This practice by the trial court has created an iceberg like appellate record that is not as illuminating as it might be. [3] We offer no opinion as to the applicability of Evidence Code section 1108 or its effect on the severance of counts in this case.