Pornography, Obscenity, Prostitution
Category > Pornography, Obscenity, Prostitution
Updated 3/4/2024The juvenile court erred by not deciding whether the possession of child pornography was a felony or misdemeanor.By passing Prop 83 (Jessica’s Law), the voters intended to continue to classify the crime of possession of child pornography as a “wobbler” so that that the juvenile court could continue to declare it as either a felony or a misdemeanor.id: 27951
Updated 3/4/2024Defendant was improperly charged with section 311.11(c), which defines an alternative penalty provision in child pornography cases rather than a substantive offense. Defendant was charged with multiple counts of possessing child pornography under Penal Code section 311.11. Two counts were improperly charged under section 311.11, subd. (c) because that provision defines an alternate penalty provision rather than a substantive offense. id: 27793
Updated 2/26/2024Human trafficking of a minor conviction was reversed where the “victim” was not a minor, but rather, an undercover officer.Defendant was convicted of human trafficking of a minor under Penal Code section 236.1, subd. (c). However, reversal was required based on the undisputed fact that the intended victim was not actually a minor, but rather an undercover police officer. Section 236.1. subd. (c) requires that the victim must have been a minor at the time of the offense.id: 26361
Updated 2/23/2024The evidence didn’t support a conviction for transmitting harmful material to a minor where defendant sent the material to an adult posing as a minor.The evidence was insufficient to support defendant’s convictions under Penal Code section 313.1(a) for transmitting harmful matter to a minor, where the record shows he sent the material to an adult who was posing as a minor. He could have been convicted of an attempt but that wasn’t charged.id: 26921
Updated 2/3/2024The trial court erred in instructing that a defendant could be convicted of distributing child pornography for commercial purposes by sharing it with others in a peer-to-peer network. Defendant was convicted of distributing child pornography “for commercial consideration” in violation of Penal Code section 311.2(b). The trial court erred by instructing that the commercial consideration element could be satisfied by trading with others on a peer-to-peer sharing network. The element requires proof of payment, although payment need not be monetary. id: 27773
Updated 1/31/2024Probation condition prohibiting defendant from possessing pornographic materials was unconstitutionally vague.Defendant pled no contest to possessing child pornography. The probation condition prohibiting him from possessing pornographic materials was unconstitutionally vague where the term wasn't defined, wasn't restricted to child pornography, and would have arguably applied to art or the movies.id: 28049
Human trafficking conviction was reversed where the alleged victim was fictional and the statute required a real victim under the age of 18.Defendant was convicted of human trafficking of a minor under Penal Code section 236.1, subd.(c) after accepting a request to be a Facebook friend of a fictional 17 year-old prostitute created by a detective. The jury was correctly instructed that mistaken belief about the age of the victim was not a defense to the crime. Nevertheless, the conviction was reversed because there was no person under the age of 18 at the time the offense was allegedly committed. id: 25678
Protections afforded to victims of human trafficking in the CASE Act apply to juveniles charged with soliciting prostitution.The Californians Against Sexual Exploitation Act (CASE ACT) enacted in 2012, increased the penalties for human trafficking. It also added Evidence Code section 1161, which provides that evidence that a victim of human trafficking has engaged in any commercial sex act is inadmissible to prove the victim’s liability for the commercial sex act. Contrary to the prosecution’s argument , section 1161 applies to a charge of soliciting prostitution even though that offense does not require that anything of value be given or received. Interpreting “commercial sex act” in this way would deny significant protection intended by the Act. The Act is also applicable in juvenile proceedings.id: 24953
The trial court erred by failing to define “identifiable person” for a defendant charged with secretly filming an identifiable person. Defendant was convicted of several counts of violating Penal Code section 647, subd.(j)(2), which criminalizes the act of secretly filming or photographing an identifiable person through clothing for sexual gratification. To establish the defendant has filed an “identifiable person,” the prosecutor must show that when all the evidence is considered, it is reasonably probable that someone could recognize or identify the victim - this may include the victim herself or himself. Evidence satisfied this standard on the charged counts. Nevertheless, reversal was required where the trial court erred by failing to instruct sua sponte on the definition of “identifiable person.” id: 24023
The evidence did not support the pandering conviction where defendant offered someone money to have sex only with him.Defendant offered a person money to have sex only with him. These actions did not make him a panderer because pandering requires causing someone to become a prostitute to satisfy the desires of another person.id: 21989
Evidence did not support the conviction of possession of child pornography where defendant had pasted a photo of his young daughter’s head on pornographic photos of adult women.Defendant was convicted of possessing child pornography in violation of Penal Code section 311.11, after he was found with pornographic photographs on his computer of adult women with his 13 year-old daughter’s head superimposed on the bodies. However, the evidence did not support the conviction because the phrase “the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct” in section 311.11 requires a real child to have actually engaged in or simulated the sexual conduct depicted.id: 22221
Defendant could not be properly be convicted of two counts of possessing child pornography where the computer and another hard drive were found in the same location - defendant’s backpack. Defendant was convicted of three counts of possessing child pornography based on pornography found on two separate computers and another hard drive. He could only properly have been convicted of one count of possession based on the computer found in the storage shed, and a second count where both the computer and hard drive were found in his backpack. One conviction was dismissed.id: 22486
The use of sexually-related words in an angry rather than sexual context did not support a conviction for obscene communications in a text message.A minor sent his former girlfriend two text messages expressing negative feelings about their breakup. The messages included the words “fuck” and “cunt” but were used to express anger and insult rather than any sexual meaning. The minor’s convictions for criminal threats under Penal Code section 422, and making an obscene telephone communication under section 653m were reversed because the messages were neither threatening nor obscene. id: 21116
The record did not show the television clips showing a naked lady dancing or two people having sex constituted “harmful matter” for the purposes of section 228.2, subd.(a) . Defendant was convicted of sending or exhibiting harmful matter to a minor in violation of Penal Code section 228.2, subd.(a). The victim was a 16 year-old friend of defendant’s daughter. The incident happened during a sleepover at defendant’s house. After his daughter went to bed, he and his daughter’s friend watched television and saw two scenes involving pornography. The first showed a naked woman during which they watched for a few minutes and the second (which they viewed for 45 minutes) showed a man and a woman having sex, although it only showed their upper bodies and from a side angle. The victim’s testimony was insufficient to show the television segments constituted “harmful material” as defined in section 313. The conviction of violating section 288.2 was reversed.id: 20892
Defendant convicted of conspiracy to pimp and conspiracy to pander was not ineligible for probation.Defendant was convicted of conspiracy to pimp and conspiracy to pander under Penal Code sections 182 and 266, subdivisions (h) and (i). The prosecution argued defendant was ineligible for probation under Penal Code sections 182, subd.(a) and 1203.65. However, the Penal Code's failure to identify probation ineligibility as punishment, and the well-accepted principle that probation is not punishment suggest that section 182's reference to "punishment" should not be interpreted to necessarily include any "probation ineligibility" provisions applicable to the underlying felony.id: 17654
Defendant could not be convicted of pandering since the woman he was pressuring to work for him was already a prostitute.Defendant was convicted of pandering under Penal Code section 266i, subd.(a)(2). However, the pandering statute targets a person who induces or encourages another person to become a prostitute. It does not apply where, as here, a person who is already a prostitute without a pimp, is encouraged by the pimp to work for him.id: 20783
Defendant’s simultaneous possession of multiple child pornography materials in multiple computers at the same location is chargeable as but one violation of section 311.11.The trial court granted defendant’s demurrer to several counts of possession of child pornography under Penal Code section 311.11, finding that the discovery of multiple images of the child pornography in defendant’s home could not be fragmented into multiple counts. The prosecutor argued multiple counts were proper because pornography was found on multiple computers, hard drives, discs and tapes. However, the statute is ambiguous and must be resolved in favor of defendant’s argument that his simultaneous possession of multiple child pornography materials at the same location is chargeable as but one offense. id: 20722
The possession of multiple video images on a laptop computer constituted a single violation of section 311.11.Defendant was convicted of 10 counts of possessing child pornography in violation of Penal Code section 311.11, based upon 30 images retrieved from his computer. However, the possession of multiple video images on his computer constituted a single count of possession. The convictions for the remaining nine counts were reversed.id: 19908
Ban on indecent dial-a-porn messages violates the First Amendment.As amended in 1988, 47 U.S.C. section 223(b) imposed an outright ban on indecent as well as obscene interstate commercial telephone messages. The Supreme Court, in an opinion written by Justice White, affirmed the district court's prohibition against obscene interstate telephone communications for commercial purposes. However, the court also affirmed the district court's injunction against enforce-ment of the statute insofar as it applied to indecent messages. Justices Brennan, Marshall and Stevens concurred in part and dissented in part.id: 10679
There was no prostitution where strip club customers paid to watch women perform sex acts with each other, and therefore, the managers of the club did not commit pimping or pandering.The managers of a strip club were charged with pimping and pandering. The charges were based on a service the club offered whereby customers could pay a price to watch women perform sexual acts on each other in a private room. However, prostitution requires physical contact between the prostitute and the customer. Because there was no physical contact between the women and the customers, there was no prostitution. Without prostitution, there was insufficient evidence of either pimping or pandering.id: 16542
Section 311.4 conviction was reversed where defendant distributed pornographic pictures or images of sexual conduct he had with his young daughter, but there was no evidence of a commercial purpose.Defendant was convicted of employment of a minor to produce pornography for commercial purposes under Penal Code section 311.4, subd.(b). However, the conviction was reversed where there was no proof that the defendant had a "commercial purpose" (intent to make a profit) despite the fact that the pornographic images were distributed through the Internet.id: 14899
Single showing of an adult film does not constitute the use necessary to make a movie theatre an adult motion picture theatre.Cities may zone the location of theatres that show, on a regular basis, films characterized by an emphasis on the specified sexual activities or specified anatomical areas identified in the ordinance, where such films constitute a substantial portion of the films shown or account for a substantial part of the revenues derived from the exhibition of films.id: 10685
Updated 3/6/2024The existence of an actual minor or real person is not required to sustain a conviction for human trafficking under Penal Code section 236.1.Human trafficking under Penal Code section 236.1 (c) has two distinct prongs - the completed act prong, and the attempted act prong. A person violates the attempted act by engaging in the prohibited conduct whether the target is an actual minor or not.id: 26568
Updated 3/6/2024Defendant’s planning of Jessica’s prostitution career supported his conviction for attempted pimping.Defendant argued the evidence was insufficient to support his conviction for attempted pimping because his acts did not go beyond mere preparation. However, he repeatedly told Jessica to move to Los Angeles to work for him as a prostitute, negotiated a “choose up” fee and provided details on her payment and where she would work. This evidence was sufficient to support the conviction.id: 26569
Updated 3/4/2024Evidence that defendant kept the trafficking victim through fear or violence supported the forcible trafficking conviction.Defendant argued the evidence was insufficient to show the force necessary to commit forcible sex trafficking under Penal Code section 236.1(c)(2). She was already in the prostitution business using other pimps before she met defendant. However, evidence supported the conviction where defendant kept the victim in the lifestyle through violence, force or fear.id: 28141
Updated 3/4/2024The trial court did not err by failing to instruct on attempted pandering as a lesser included offense of felony trafficking.Defendant argued the trial court erred by failing to instruct sua sponte that attempted pandering of a minor under Penal Code section 266(i) is a lesser included offense of felony trafficking under section 236.1(c)(2). However, there was no substantial evidence that defendant was guilty of the alleged lesser offense but not the greater trafficking offense.id: 28143
Updated 2/26/2024A person can be convicted of pandering by encouraging a victim to become a prostitute with only himself.Defendant argued there was insufficient evidence to support his convictions for aggravated human trafficking (Penal Code section 236.1, subd. (c)) under a pandering theory because the evidence shows he intended to be the minor’s sole client. However, if a panderer persuades the victim to become a person who engages in sex or lewd acts in exchange for money, the panderer can be found guilty under section 266i(a)(2) even if he intended to persuade the victim to engage in sex solely with him and not a third party.id: 26267
Updated 2/26/2024Photographs of minor females in thong underwear in seductive poses supported the conviction for posing for sexual conduct under section 311.4(a)) despite the lack of actual sexual conduct.Evidence supported defendant’s convictions for using a minor to pose or model for sexual conduct under Penal Code section 311.4, subd. (c). In the first photograph, a 16 year-old was topless with her breasts exposed, wearing a thong bikini and reaching for a penis, which was presumably defendant’s. While the focal point of the photo may not have been the victim’s genitals, which were partially obscured by her arm, the photo suggests she was preparing for sex or a lewd act. The second photo showed a 14 year-old in a reclined position on a bed facing the camera. She was wearing bikini underwear and pulled up her bra to expose her breasts and a reasonable juror could find she exhibited her genitals for the purpose of sexual stimulation.id: 26268
Updated 2/23/2024The lack of evidence that certain Jane Does did not actively engage in prostitution did not require reversal of the pandering convictions.Defendant argued the evidence was insufficient to support certain pandering counts because it did not establish that he “affirmatively influenced” them to become prostitutes. However, defendant was recruiting prostitutes and it did not matter that some women may not have engaged in prostitution. id: 26913
Updated 2/23/2024Pandering statute was not impermissibly vague, and defendant had fair notice of what conduct was proscribed.The terms “procure” and “for purpose of prostitution” were not so vague as to render the pandering provision in Penal Code section 266i.,(a)(1) unconstitutional.id: 26914
Updated 2/23/2024The trial court did not err in failing to instruct on aiding and abetting prostitution as a lesser included offense of pandering.Defendant was convicted of multiple counts of pandering. The trial court had no sua sponte duty to instruct on aiding and abetting prostitution as a lesser included offense of pandering. Assuming such an offense exists there was no evidence that he committed that crime rather than pandering.id: 26915
Updated 2/22/2024Lack of consent is neither an element nor an affirmative defense of human trafficking an adult in violation of section 236.1 (b). Defendant argued that human trafficking an adult in violation of Penal Code section 236.1 contains the element that the victim did not consent to his or her restraint or confinement, and the prosecutor did not present evidence from which the jury could conclude that the victim did not consent. However, lack of consent is neither an element nor an affirmative defense of human trafficking under section 236.1 (b).id: 27027
Updated 2/7/2024Defendant who attempted to recruit “Bella” as a prostitute was properly convicted of trafficking even though Bella was a detective and not a minor.Penal Code section 236.1 prohibits the human trafficking of a minor. Defendant was convicted of attempting to recruit “Bella” as a prostitute. Bella had identified herself as a 17 year-old girl, but was in fact an undercover detective. Defendant was properly convicted of an attempt under the trafficking statute.id: 27149
Updated 2/4/2024Data produced by a computer program was not case-specific hearsay under Sanchez where it was not admitted for its truth.Defendant was convicted of possessing hundreds of images of child pornography in violation of Penal Code section 311.11 (c). He argued the trial court erred in refusing to exclude some of the data produced by a computer program because the data was case-specific testimonial hearsay under People v. Sanchez (2016) 63 Cal.4th 665. However, the data was not hearsay since it was not offered for its truth. id: 27339
Updated 2/2/2024Mistake of fact as to age is not a defense to attempted human trafficking of a minor.Defendant was convicted of human trafficking of a minor under Penal Code section 236.1(c). That provision prohibits the human trafficking and attempted human trafficking of a minor. Defendant was convicted under the attempt prong and argued the court erred by not instructing that the prosecution had to prove specific intent as to age. However, the crime is committed when defendant attempts, but fails, to traffic a minor even if the defendant lacks a specific intent regarding the victim’s age. Mistake of fact as to age is not a defense to attempted human trafficking under section 236.1(c).id: 27871
Updated 2/1/2024Defendant could be convicted of both human trafficking and pimping of a minor as an aider and abetter even if he didn't know that Jane was a minor.Defendant argued the evidence was insufficient to show he knew Jane Doe was underage to support his convictions for human trafficking and pimping a minor. However, defendant could be convicted of both offenses, as an aider and abetter, even if he didn't know that Jane was a minor.id: 27969
Defendant was properly convicted of pandering even though the victim was already a prostitute.Defendant was convicted of pandering in violation of Penal Code section 266i, subd,(a)(2). The fact that the victim was already a prostitute was not a bar to conviction since defendant’s assistance facilitated her prostitution in the future, and thus met the statutory definition.id: 26035
Evidence supported defendant’s convictions for preparing pornographic images even though the child victims didn’t pose voluntarily.Defendant argued there was insufficient evidence to support his conviction for preparing pornographic images under Penal Code section 344.4. He argued the minor in the photos and films he created did not pose or model. He said she did not pose or model because she didn’t know she was being filmed, and he’s the one who set up the shots. However, contrary to defendant’s claim, section 311.4 applies where the children were forced into poses.id: 25789
Evidence supported human trafficking conviction where defendant kept a prostitute dependent on him for food/shelter and money even though she had her own room and a phone. Defendant argued that although the evidence supported his pimping and pandering conviction, it did not support his conviction for human trafficking under Penal Code section 236.1, subd.(b). He argued the victim was not abducted, she had her own room, bought her own food and had a cell phone. However, the record showed the victim was isolated and kept dependent on defendant for her day-to-day sustenance, including food, shelter, and money. The evidence showed a sustained restriction of liberty accomplished through force, fraud, deceit, duress or menace.id: 25518
Using a minor to perform a prohibited act under section 311.4, subd.(c) is not a lesser included offense of human trafficking.The trial court did not err in failing to instruct on using a minor to perform a prohibited act (Penal Code section 311.4, subd.(c)) as a lesser included offense of human trafficking under section 236.1, subd.(c) because the latter can be committed without necessarily committing the former and the crime as charged did not include all of the elements of the lesser offense.id: 25433
Following Prop 35, a human trafficking victim was properly found to be an uncharged coconspirator allowing for the admission of her hearsay statements.Defendant was convicted of human trafficking based on his pimping of two minors against their will. Under Prop 35 (Californians Against Sexual Exploitation Act) trafficked minors are treated as victims, not criminals. One victim (Doe 1) was treated as a coconspirator for the purpose of introducing hearsay evidence showing how the other victim (Doe 2) was recruited. Defendant argued that because Doe 1 was immune from prosecution under Prop 35, she could not have been his coconspirator, and her out-of-court statements were therefore inadmissible. However, she was properly deemed an uncharged coconspirator for purposes of Evidence Code section 1223 and her statements were properly admitted.id: 25323
Human trafficking statute was not void for vagueness even though it substantially duplicated the pandering statute. Defendant was convicted of human trafficking under Penal Code section 236.1. He argued that provision was void for vagueness because, as applied to him, it incorporated the definition of pandering as provided in section 266i. Although defendant might have been both a panderer and a trafficker, that does not mean the prosecutor was obligated to charge him with the more lenient provision, nor that either offense was vague.id: 25324
Defendant’s challenge to Evidence Code section 1161, subd.(b) failed where evidence of the trafficking victim’s prior prostitution was admitted at trial. Defendant was convicted of human trafficking. He argued that Evidence Code section 1161, subd.(b), which excludes evidence of prior prostitution activity by victims of trafficking violated his rights to due process, and confrontation. However, because evidence of the victims’ prior prostitution was admitted in this case, defendant could not show any prejudice.id: 25325
Evidence supported defendant’s conviction of pandering even though the undercover officer he encouraged to become a prostitute was not promised money and she had no intention of becoming a prostitute.Defendant was convicted of pandering under Penal Code section 266i, subd.(a)(2) by encouraging an undercover officer to become a prostitute. The evidence was sufficient to support the conviction. Defendant repeatedly told the officer he would provide her with housing and clothing in exchange for the case she earned. The law did not require that he agreed to pay her money for her services. Finally, defendant could be convicted of the substantive offence rather than an attempt even though the officer had no intention of prostituting herself on defendant’s behalf.id: 20963
Evidence supported the possession of child pornography conviction even though the jury never saw the photos. Defendant argued the evidence was insufficient to support his conviction for possession of child pornography because the photographs he possessed were not presented to the jury. However, the conviction was supported by a witness’s testimony regarding two photos she found on defendant’s Facebook account. She recognized the blanket on the bed, the young girls skirt and defendant’s hand.id: 24277
Provisions prohibiting attempt to send harmful material over the Internet did not violate the Commerce Clause or the First Amendment right to free speech.Defendant was convicted of attempting to send harmful matter over the Internet. Contrary to defendant's claim, the statute does not place an undue burden on interstate commerce in violation of the commerce clause, and does not violate the First Amendment by restricting a substantive amount of protected speech. The statute is sufficiently tailored to serve a compelling state interest.id: 20278
The minor failed to meet her burden under Evidence Code section 1161 of showing that she was a trafficking victim in the prostitution case. The minor was found to have committed loitering with the intent to commit prostitution. She argued the juvenile court erred by excluding evidence under Evidence Code section 1161 that she committed the alleged commercial sex act as a result of being a victim of human trafficking. While the evidence showed a man leading her around streets known for prostitution, it did not establish as a matter of law that she was a human trafficking victim. Trial counsel did not render ineffective assistance by failing to introduce additional evidence that the man bought her a BART ticket because that evidence would not have been enough to establish the elements of trafficking.id: 23877
Evidence supported the possession of child pornography conviction where defendant repeatedly visited child porn web sites and lied to his parole officer by saying he lacked access to the Internet.Defendant was convicted of possessing child pornography with a prior child molest conviction under Penal Code section 311.11, sub.(b). He argued the evidence was insufficient to show that he knowingly possessed or controlled the material found on his computer. However, the evidence showed that he intentionally used his home computer to see child pornography, which violated his probation and he lied to his parole agent by saying he lacked Internet access. There was no indication that the case involved inadvertent acquisition or possession of the prohibited material. id: 23547
Abduction for prostitution conviction is proper even where family dynamics end up with occasional temporary separation of child and parent. Defendant was convicted of abducting a minor for prostitution under Penal Code section 267. The offense requires that the minor be taken from a parent. Defendant argued it did not apply where the minor who comes and goes as she pleases, and is taken from her boyfriend. However, the evidence supported the conviction because the minor had not been abandoned by her mother, as defendant suggested, and while she occasionally ran away she always returned and remained connected with her mother.id: 23541
The juvenile court could not use a human trafficking defense where she was working as an “independent contractor” rather than for a pimp.The minor was found to have solicited prostitution. She argued that because she was a victim of human trafficking, the juvenile court erred in denying her motion under Evidence Code section 1161, subd.(a), to exclude evidence that she committed a commercial sex act. However, the record showed the minor was not a victim of human trafficking in relation to the solicitation of prostitution at issue, and section 1161 therefore does not apply. id: 23500
A minor can legally form the intent to commit prostitution.The minor argued there was insufficient evidence to support her conviction for loitering with the intent to commit prostitution in violation of Penal Code section 653.22. However, she admitted to being in the hotel for that purpose, and the fact that she was a minor did not mean she was legally incapable of forming the intent to commit prostitution.id: 23592
Evidence supported the pandering by encouragement conviction where the offense began when the victims were first approached and continued during the acts of prostitution.Defendant argued the evidence was insufficient to support the pandering convictions because there was no evidence he aided and abetted the codefendant before the crime was completed as to either victim. However, the charged offense, pandering by encouragement was an ongoing crime that began when the victims were encouraged to become prostitutes and continued during the acts of prostitution. The evidence supported the convictions, and the trial court was not required to instruct the jury on the need to unanimously agree on which act formed the basis of liability for pandering.id: 23696
Evidence supported the child pornography conviction where photos were found in defendant’s temporary Internet space.Defendant was convicted of possessing child pornography in violation of Penal Code section 311.11. He argued the evidence was insufficient to support the conviction because it did not show he was aware of the images in his temporary Internet space. Those images had been saved to a hard drive but then deleted. But defendant was a sophisticated computer operator and the evidence supported the jury’s finding that he knew he possessed the images on his hard drive, and that he had twice viewed them before deleting them. The fact that similar images were found on three of his computers rebutted any reasonable claim that the photos were sent to his computer by way of a virus.id: 23365
The child pornography possession statute was not void for vagueness.Defendant argued reversal of his child pornography possession conviction was required because Penal Code section 311.11, subd.(a) was void for vagueness. However, the statute is abundantly clear in prohibiting the possession or control of pornography and does not punish a search that doesn’t result in possession.id: 23366
Police officers’s words and overt acts supported his solicitation of prostitution conviction even though he never directly offered money for sex.Defendant was a police officer convicted of soliciting prostitution. He argued the evidence was insufficient to support the conviction because he never explicitly requested sex for money. However, his words and overt acts supported the conviction as he used his position to get a woman released on her own recognizance, called her a cab, gave her $200 and told her to get a room at the Holiday Inn where he would meet her.id: 23126
Defendant was properly convicted of four counts of duplicating child pornography with the intent to distribute (section 311.12(d)) where he moved photos of four boys from a hard drive to two thumb drives.Defendant was convicted of four counts of duplicating child pornography with the intent to distribute it to a minor in violation of Penal Code section 311.2, subd.(d). He had cut and pasted photos of four boys from a hard drive onto two thumb drives, and argued there was but a single offense. However, the evidence supported the separate convictions as the act of knowingly duplicating child pornography (unlike the criminal acts of possession) constitute acts of abusive or exploitive use of children in producing pornography which is what law seeks to prevent.id: 22618
Section 654 does not prohibit separate sentences for multiple counts of distributing child pornography by email.Defendant argued the trial court was required by Penal Code section 654 to stay execution of sentence on four convictions for distributing child pornography in violation of Penal Code section 311.2, subd.(c) because the transmission of multiple emails in rapid succession to a single recipient constituted an indivisible course of conduct. However, defendant composed separate emails, typed the recipients’s email address, selected various images of child pornography from hundreds on his computer and attached the specific images to each email. It did not matter that there was a single objective where the messages were sent minutes apart.id: 22315
Multiple convictions of violating section 311.4 where defendant took three photographs of the same victim on the same occasion.Defendant was convicted of three counts of using a minor to produce child pornography in violation of Penal Code section 311.4, subd.(c). He argued that the law allowed only a single violation where he took three separate photographs of one victim on the same occasion. However, the provision authorizes multiple convictions and that interpretation did not violate defendant’s equal protection rights. id: 22389
One can be convicted of pandering when the target is already a prostitute or an undercover officer acting as one.Pandering under Penal Code section 266i, subd.(a)(2) which is defined as encouraging “another person to become” a prostitute, applies even when the target is already a prostitute or an undercover police officer acting as one.id: 22207
The trial court did not err by allowing the daughter of the defendant charged with possessing child pornography to testify about a prior molest incident under section 1108.Defendant was charged with possession of child pornography. He argued the trial court erred by introducing evidence of a prior child molest conviction under Evidence Code section 1108. Contrary to defendant’s claim, section 1108 applies where the current charge is child pornography possession. Moreover, the conviction was probative and showed he was predisposed to engage in the charged conduct as he was attracted to young girls. Finally, the prior conviction was not remote as defendant had only been released from prison for one year when the surprised parole search revealed the child pornography. id: 22552
Defendant forfeited the claim that the jury should not have viewed the entire 25 minute child pornography video. Defendant was charged with possession of child pornography. He argued the trial court erred by allowing the jury to view the entire 25 minute video because there were evidentiary alternatives to viewing the video. However, defendant forfeited the issue by failing to proffer a specific excerpt or any other specific evidentiary alternative at trial. Because no alternatives were suggested, the court could not perform the Evidence Code section 352 analysis. In any event, the presentation of the entire video did not render the trial fundamentally unfair for due process purposes.id: 22551
Pimping statute’s prohibition of deriving support from the earnings of a known prostitute does not violate due process. Defendant was convicted of pimping under Penal Code section 266h, subd.(a) on the theory that he derived support from the earnings of a known prostitute. He argued the prohibited conduct violated his due process rights because it criminalizes a person’s cohabitation in the household of a known prostitute. However, the provision was constitutional as it was related to a proper legislative goal. Moreover, defendant had knowledge of the source of the prostitute’s funds.id: 22166
The forced viewing of a hard cord pornographic movie supported defendant’s section 288.2 conviction. Defendant was convicted of exhibiting harmful matter to a minor for purposes of seduction and sexual gratification in violation of Penal Code section 288.2. He argued the evidence did not support the conviction because the victim’s accounts of seeing “bad” and “nasty” movies featuring pornography were insufficient to provide the court with necessary information about the content of the movies. However, despite the lack of detail, the victim described seeing a movie in which actors engaged in sexual activity while displaying all body parts. This was sufficient to support the verdict.id: 22163
A good faith belief the minor is 18 is not a defense to pimping or pandering a minor.Defendant argued the trial court erred in refusing his request to instruct the jury that defendant's good faith, reasonable belief the girl was 18 was a defense to the charges of attempted pimping and pandering of a minor. However, a defendant's good faith belief is not a defense to the charges, and the trial court properly refused defendant's proposed instruction.id: 21554
Evidence supported the pandering conviction where defendant called a person who placed a prostitute ad on the Internet (never having been a prostitute) and convinced her to join his ring. Evidence supported defendant’s conviction for pandering under Penal Code section 266i. He telephoned a woman who had placed an ad on the Internet and convinced her to join his ring. Despite the posting, the woman had never before been a prostitute. Even if she somehow approached defendant first by placing the ad, that does not preclude a finding of pandering.id: 21286
Evidence supported defendant’s pimping conviction where he advertised P. for prostitution services on the Internet and later received the proceeds.Evidence supported defendant’s conviction for pimping under Penal Code section 266h, where he advertised P. for prostitution (on the Internet), took the proceeds from the activity, and lived on her earnings. There was no reason to believe defendant had posted the photographs without expecting money. id: 21285
The prostitutes who testified at defendant’s pimping and pandering trial were not accomplices whose testimony need to be corroborated. Defendant was convicted of pimping and pandering based largely on the testimony of two prostitutes. He argued the women were accomplices and as such their testimony needed to be corroborated. However, they were not accomplices: they were exploited women who told similar stories of how defendant recruited them into prostitution. In any event, their testimony was corroborated by other witnesses.id: 21284
There was substantial evidence that defendant knowingly possessed or controlled the child pornography in the computer’s cache files. There was sufficient evidence to show defendant knowingly possessed or controlled child pornography images for purposes of Penal Code section 311.11, subd.(a). The evidence showed he actively searched for child pornography on various Web sites. The temporary Internet files (TIF) or cache evidenced his knowing possession or control of the images. There was no need for additional evidence that defendant was aware of the TIF or cache to establish a violation of section 311.11. id: 20724
Evidence showed defendant personally possessed the child pornography on the family computer where the multiple images were not the result of inadvertent pop-ups and the same images were found on his work computer.The evidence was sufficient to show defendant personally possessed the child pornography on the family computer. He argued the pornography on the computer may have been the result of accidental Internet use or involuntary computer pop-ups. However, the size and format did not match that of a pop-up. Moreover, some images were found multiple times, and various word searches included terms commonly connected with child pornography. Defendant also displayed consciousness of guilt when interviewed by a police officer when he said “My life is over”. Finally, similar evidence was found on work computers, including the same Websites and images of the same children.id: 20723
Defendant was properly convicted of being an ex-felon in possession of a weapon notwithstanding his honorable discharge from the CYA.Defendant argued his conviction under Penal Code section 12021 for being an ex-felon in possession of a firearm was improper because he had been honorably discharged from the California Youth Authority for the prior felony and Welfare and Institutions Code section 1772 subdivision (a) provides for the release from all penalties and disabilities associated with the offense once the youth receives an honorable discharge. However, the prohibition of section 12021 against carrying a concealable firearm is not a penalty or disability within the meaning of section 1772.id: 10680
A violation of section 311.4, subd.(c) which prohibits using or inducing a minor to model for a videotape involving sexual contact does not require personal interaction between defendant and the victims.Defendant was convicted of multiple violations of Penal Code section 311.4, subd.(c) for secretly videotaping young girls changing into and out of bathing suits outside of a locker room. He argued the provision requires proof that the girls were
modeling or posing at his direction. However, nothing in the term "uses" requires person-to-person interaction between defendant and the victims.id: 19682
Words alone can constitute an act in furtherance of an agreement to engage in prostitution.Words alone can constitute an act in furtherance of an agreement to engage in an act of prostitution, proving that the statements made are unequivocal and unambiguous in moving the parties toward the agreed act. The defendant's verbal instruction for the officer to undress was a clear and unequivocal statement directed at completing the agreed act of prostitution.id: 18923
Distribution or possession with intent to distribute child pornography to a minor is punishable as a felony.Defendant pled no contest to a charged violation of Penal Code section 311.2, subd.(d) - distributing to a minor or possessing with intent to distribute to a minor matter depicting a minor engaged in or simulating sexual conduct. A violation of that provision must be penalized as a felony under section 18, rather than a misdemeanor under section 311.9, subd.(a).id: 17781
Creation of child pornography statute may apply to portrayals of children's covered genitalia.Defendant argued California's child pornography and sexual exploitation statutes cannot be applied to photographs of a minor's partially clothed genital area. However, in some circumstances, the exhibition of partially clothed genitals can constitute sexual conduct within the meaning of Penal Code sections 311.3 and 311.4.id: 17694
Trial court was not required to instruct sua sponte on the meaning of "exhibition of the genitals" or "for the purpose of sexual stimulation of the viewer."Defendant was convicted of creating child pornography and sexual exploitation. The trial court instructed the jury on the meaning of "sexual conduct" by providing the jury with the exact language of Penal Code section 311.3, subd.(b). Defendant argued the court should have given special instructions, sua sponte, further explaining what "an exhibition of genitals" was and what "for the purpose of sexual stimulation of the viewer" meant. However, the jury was capable of determining, based on the instructions given, whether the photograph was an "exhibition" for the "purpose of the sexual stimulation of the viewer." Absent a request for amplification, the court's instructions were sufficient.id: 17695
Defendant had notice that photographing a young girl in panties with her legs spread constituted the creating of child pornography.Defendant argued the creation of child pornography and sexual exploitation provisions under Penal Code sections 311.3 and 311.4, are unconstitutional because they violate the "fair warning"' guarantees of the due process clause. However, "sexual conduct" under those provisions is not confined to nude exhibitions and defendant was on notice that photographing a 15 year-old girl in a bra and panties with her legs spread to display her crotch area, fell within the noted provisions.id: 17696
Evidence supported conviction of creating child pornography where the 15 year-old girl was photographed on defendant's garage floor in her underwear posing in an unnatural and sexually suggestive manner.Defendant was convicted of creating child pornography and sexual exploitation under Penal Code sections 311.3 and 311.4. He argued the evidence did not support the convictions. In the photograph he scanned into his computer, a 15 year-old girl was seated on the floor of his garage. She was wearing a patterned bra and differently patterned bikini underpants. Her hands were on her knees with her legs splayed to display her crotch area. The pose was unnatural and sexually suggestive. A reasonable jury could have found a violation of the charged statutes.id: 17697
Misdemeanor offense of aiding a prostitute was not a lesser included offense of felony pimping under either the elements test or the accusatory pleading test.Defendant argued the trial court erred by failing to instruct the jury that the misdemeanor offense of aiding a prostitute under Penal Code section 653.23 is a lesser included offense of pimping under section 266h, subd.(a). However, the former is not a lesser included offense of the latter under the "elements test" because it requires a direct collection of proceeds from a prostitute whereas pimping can be committed by a person indirectly deriving support from the earnings of a prostitute. Moreover, section 653.23 was not a lesser included offense under the accusatory pleading test since the information did not allege the earnings of a prostitute were directly paid to defendant.id: 17653
Producing child pornography and trading it on the Internet for the nonmonetary purpose of enriching defendant's collection amounted to making it "for commercial purposes" under section 311.4, subd.(b). Penal Code section 311.4 proscribes employing a minor to produce child pornography. Subdivision (b) of that section provides for a longer prison sentence than otherwise if the defendant makes the pornography "for commercial purposes." Producing child pornography and posting it on the Internet in order to induce others similarly to trade such pornography on the Internet (without making a monetary profit), satisfies the statute's commercial purpose.id: 16873
Solicitation of prostitution requires an agreement and an act, but in no particular order.Minor female was found to have solicited prostitution under Penal Code section 647, subdivision (b). That provision requires an agreement to engage in prostitution and an overt act in furtherance of that agreement. Contrary to defendant's claim, the corroborative act need not occur after the agreement was made.id: 15555
Court was not required to instruct on aiding and abetting prostitution as a lesser included offense of pimping.Defendant was convicted of pimping under Penal Code section 266 h, subd.(a). She argued the court erred in failing to instruct on the lesser included offense of aiding and abetting prostitution. However, there is no such crime. The only possible offense she committed was that of pimping.id: 14898
Statute prohibiting child pornography is not unconstitutional for delegating legislative power to the association that provides ratings.Penal Code section 311.11 prohibits possession of child pornography. Defendant argued the provision is void because the provision exempting any film rated by the Motion Picture Association of America constitutes an unconstitutional delegation of legislative power. However, the statute contains a detailed description of the prohibited conduct so the fact that a third party was delegated the task of determining which motion pictures violated the statute is not an impermissible delegation of authority. In any event, section 311.11, subd.(d) does not give the MPAA power to determine that something is illegal; it only gives it power to determine that something - a film with an MPAA rating - is not illegal.id: 14900
Three year minimum mandatory term for pimping is not cruel and unusual.Defendant was convicted of three counts of pimping under Penal Code section 266 h, subd.(a). She received the three year low term as to the first count and the other terms were ordered to run concurrent. She argued the three year mandatory minimum term was cruel and unusual punishment. It was not. She ran a sophisticated call-girl operation that reached across the country and affected many people. Moreover, she was not above making threats to ensure she received her share of the proceeds. The sentence was appropriate for the crimes of which she was convicted.id: 14901
There was no First Amendment violation in permitting expert testimony regarding the "apparent age" of actors in a child pornography case since statute requires a real minor.Defendant's probation was revoked after he was found to have violated Penal Code section 311.11 - possession of child pornography depicting a person under age 18 engaging in sexual conduct. He argued that interpreting that provision to allow proof of "apparent age" of the actors was unconstitutional and that the evidence should be limited to that which is competent to establish true chronological age. However, the testimony of expert witnesses on the topic was relevant, admissible and not a First Amendment violation.id: 14825
Evidence supported charge of possessing child pornography against photographer whose photos focused on the models' panty or bikini-clad crotch areas.Evidence supported the charge of possession of child pornography pursuant to Penal Code section 311.11, subdivision (a) as the photos and videotapes depicted minors in various poses at photo shoots. A trier of fact could find the seized material, with its unrelenting focus on the area between the models' legs, constituted an exhibition of the genital, pubic or rectal area for the purpose of sexually stimulating the viewer.id: 10681
In prosecution for sexual filming of minors, the court was not required to instruct that the rectal area does not include the buttocks.Appellant was convicted of several counts of sexual filming of a minor pursuant to Penal Code section 311.4, subdivision (c). He argued the court erred in failing to instruct the jury on the term rectal area as used in the provision because it was a technical term and the court had a sua sponte duty to so instruct. However, the subject term is not a technical one requiring a special instruction. Moreover, contrary to appellant's claim, the term rectal area for purposes of this provision also encompasses the buttocks.id: 10682
Offense of employing or using a minor to pose for sexual photographs is punished as a felony.Appellant was convicted of several counts of using minors to pose for sexual photographs pursuant to Penal Code section 311.4, subdivision (c). He argued the convictions must be treated as misdemeanors not felonies because section 311.9, subdivision (b) states that every person who violates section 311.4 is punishable by fine of not more than two thousand dollars or by imprisonment in county jail for not more than one year, or by both such fine and such imprisonment. However, based on the legislative history of the subject statutes and the language of section 311.4 subdivision (c), it is clear that the Legislature intended for a violation of that section to be punished as a felony.id: 10683
Overbreadth issue was mooted by amendment to child pornography statute.Defendant was convicted under a Massachusetts statute prohibiting adults from posing nude minors for photographs. After the U.S. Supreme Court granted certiori, the statute was amended to add a lascivious intent requirement. Writing for a four-person plurality, Justice O'Connor ruled that the statute's amendment mooted the argument that it was overbroad on its face, because it could no longer chill free speech, and accordingly the judgment below was vacated and the case remanded for further proceedings on the other issues which had not been reached. Justices Scalia and Blackmun dissented from the mootness ruling, stating that they would uphold the statute as not overbroad. Justices Brennan, Marshall and Stevens also dissented from the mootness ruling, but stated that they would strike down the statute as overbroad.id: 10684
Statute prohibiting obscene telephone calls was not unconstitutionally vague.Appellant was convicted of making telephone calls with the intent to annoy pursuant to Penal Code section 653n, subdivision (a) and (b). He argued both subdivisions are unconstitutionally overbroad because they impinge on his free speech rights. However, both subdivisions forbid conduct rather than pure speech. Moreover, the trial court correctly instructed the jury by giving a common dictionary definition of the word obscene rather than the United States Supreme Court's definition dealing with sex in a manner appealing to one's prurient interest.id: 10686
There is no legally protected privacy interest in the distribution of obscene matter.Defendants were charged with distributing obscene material under Penal code section 311.2. They argued that as distributors of obscene matter, they have standing to assert their customer's privacy right to possess and that since obscene matter in the hands of their customers is protected under the privacy provision of the California Constitution, the distributors of obscene matter are also protected. It is true that under Article 1, section 1, of the California Constitution, distributors of obscene matter have standing to assert the privacy rights of their customers. However, distributors did not come within the protection of the California Constitution's privacy right for purpose of prosecution under section 311.2 as there is no legally protected privacy interest in the distribution of obscene matter and there can be no reasonable expectation of privacy in the circumstances involving distribution of obscene matter.id: 10687
Evidence supported charge that photographer used minors to pose for sex acts despite the fact that models were not nude.Evidence supported the charge of using a minor to pose for a film or photograph involving sexual conduct under Penal Code section 311.4, subdivision (c). The models were posing for the purpose of developing a photo portfolio. However, defendant diminished his subjects by focusing on their private parts after directing them to assume unnatural and sexually suggestive positions. That the models were covered by panties or swimsuits did not negate the nature of the sexual conduct.id: 10036
Supreme Court upholds Ohio child pornography statute.In a 6-3 opinion written by Justice White, the Supreme Court upheld Ohio's child pornography statute, rejecting the defendant's First Amendment claims. The court found that Ohio had a compelling interest in protecting the physical and psychological well being of minors and in destroying the market for the exploitative use of children. The court ruled that the statute was not unconstitutionally over broad and its failure to provide a <i>mens rea</i> was cured by the Ohio Supreme Court's conclusion that the state must establish scienter. However, the court concluded that the conviction must be reversed because it was unclear whether it was based on a finding that the state had proved each of the elements of the offense. Justices Brennan, Marshall, and Stevens agreed that the conviction should be reversed, but dissented from the ruling upholding the statute.id: 9512
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245