De La Cerda v. Superior Court ( 2022 )

Filed 2/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MATTHEW JAMES DE LA CERDA,
F082783
Petitioner,
(Super. Ct. No. F20907717)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS: petition for writ of mandate. Michael G. Idiart,
Judge.
Law Office of Rick Horowitz and Rick Horowitz for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Eric L.
Christoffersen, Deputy Attorneys General, for Real Party in Interest.
-ooOoo-
INTRODUCTION
The writ petition before us concerns Penal Code section 311.11, subdivision (c), 1
and whether that statutory provision constitutes substantive offenses or an alternate
penalty provision. Section 311.11(a), defines the offense of child pornography
possession and provides an alternate misdemeanor or felony punishment of up to three
years in prison upon conviction. An alternate misdemeanor or felony punishment of up
to five years in prison is prescribed under section 311.11(c) if section 311.11(a) is
violated and at least one of two aggravating factors is present.
Petitioner Matthew James De La Cerda was charged with three counts of child
pornography possession under section 311.11: count 1–violation of section 311.11(a)
that includes over 600 images of child pornography, including 10 or more images of a
prepubescent minor or minor under 12 years of age (§ 311.11(c)(1)); count 2–violation of
section 311.11(a) that includes sadomasochistic child or youth pornography
(§ 311.11(c)(2)); and count 3–possession of child pornography in violation of
section 311.11(a). Petitioner filed a demurrer asserting counts 1 and 2 under
section 311.11(c) were not predicated on substantive offenses for which separate
convictions were permitted–section 311.11(c) was an alternate penalty provision for a
violation of section 311.11(a) where at least one aggravating factor exists. The demurrer
was overruled without prejudice, and petitioner filed a petition for a writ of mandamus to
compel the Fresno Superior Court to vacate and reverse its order.
After we summarily denied the petition, the California Supreme Court granted
review and transferred the matter back to this court with directions that we vacate our
1 All other statutory references are to the Penal Code unless otherwise indicated.
Section 311.11, subdivisions (a), (b), (c), (c)(1), and (c)(2) are referred to in this opinion
as section 311.11(a), section 311.11(b), section 311.11(c), section 311.11(c)(1), and
section 311.11(c)(2), or as § 311.11(a), § 311.11(b), § 311.11(c), § 311.11(c)(1), and
§ 311.11(c)(2).
2.
summary denial and issue an order to show cause why the petition should not be granted.
Having now done so, and considering the parties’ arguments, we conclude
section 311.11(c) is an alternate penalty provision, not a substantive offense. As counts 1
and 2 do not state substantive offenses, they may not be separately charged pursuant to
section 954. The trial court was required to sustain the demurrer. For the reasons
discussed below, the writ of mandate shall be granted.
BACKGROUND
A search warrant executed at petitioner’s residence on October 1, 2020, revealed
288 items of alleged child pornography on petitioner’s electronic devices. Of these, 39
were videos (each of which assertedly qualify as 50 images under section 311.11,
subdivision (f)(2)), and at least one of which purportedly depicts sexual sadism or sexual
masochism.
The Fresno County District Attorney filed a criminal complaint charging petitioner
as follows: count 1–possession of over 600 images of child pornography within the
meaning of section 311.11(a), including 10 or more images of a prepubescent minor or a
minor under 12 years of age (§ 311.11(c)(1)); count 2–possession of sadomasochistic
child or youth pornography (§ 311.11(c)(2)); and count 3–possession of child
pornography in violation of section 311.11(a).
On March 16, 2021, petitioner filed a demurrer to the felony complaint and argued
counts 1 and 2 under section 311.11(c)(1) and (c)(2) were not substantive offenses—the
counts were derived from a penalty provision that provided for a greater sentence when
one or more aggravating factors accompanied the substantive offense of possession of
child pornography under section 311.11(a). The district attorney filed an opposition brief
on March 19, 2021; petitioner filed a reply brief on March 26, 2021. On March 30, 2021,
the superior court overruled the demurrer without prejudice.
On May 17, 2021, petitioner filed a petition with this court for writ of
mandate/prohibition that the superior court vacate and reverse its March 30, 2021, order
3.
overruling the demurrer. That petition was summarily denied on the day it was filed; and
petitioner immediately filed a petition for review in the California Supreme Court, case
No. S268826. Our high court requested real party in interest—the People—to file an
answer to the petition for review. On July 14, 2021, the high court granted the petition
for review and transferred the matter back to this court, directing that we vacate our order
denying the petition and to issue an order to show cause why petitioner is not entitled to
the requested relief. Our high court also stayed all further proceedings in the superior
court pending further order of this court.
On July 29, 2021, we vacated the May 17, 2021, order denying the petition and
ordered the People to show cause why the relief prayed for by petitioner should not be
granted. The People filed a return to the order to show cause on August 30, 2021, and
petitioner filed a reply to the return to the order to show cause on September 30, 2021.
DISCUSSION
I. Propriety of Writ Review
In criminal and civil proceedings, review of interlocutory rulings of trial courts by
extraordinary writ generally is available only if there is no adequate remedy by appeal.
(Serna v. Superior Court (1985) 40 Cal.3d 239, 263, as modified on denial of rehearing
Dec. 19, 1985.) A writ of mandate may be issued by “any court to any inferior tribunal
… to compel the admission of a party to the use and enjoyment of a right or office to
which the party is entitled” in cases “where there is not a plain, speedy, and adequate
remedy, in the ordinary course of law.” (Code Civ. Proc., §§ 1085, subd. (a), 1086; see
Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205,
citing People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491 (El
Dorado).) “Two basic requirements are essential to the issuance of the writ: (1) A clear,
present and usually ministerial duty upon the part of the respondent [citations]; and (2) a
clear, present and beneficial right in the petitioner to the performance of that duty
[citation].” (El Dorado, supra, at p. 491.) “A ‘ministerial duty’ is one generally imposed
4.
upon a person in public office who, by virtue of that position, is obligated ‘to perform in
a prescribed manner required by law when a given state of facts exists. [Citation.]’”
(City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913,
926.)
In their return to the order to show cause, the People claim that writ relief is not
warranted because petitioner has an adequate remedy by virtue of a direct appeal after
judgment. Petitioner contends that an eventual direct appeal after judgment would not be
a plain, speedy and adequate remedy and may affect his ability to negotiate a plea.
Regardless of the parties’ dispute, by directing us to issue an order to show cause
why the writ petition should not be granted, the Supreme Court has “‘necessarily
determined that there is no adequate remedy in the ordinary course of law and that this
case is a proper one for the exercise of our original jurisdiction [citations].’” (People v.
Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 572, quoting El Dorado, supra, 5
Cal.3d at p. 492; see Hagan v. Superior Court (1960) 53 Cal.2d 498, 502, fn. 1 [“An
order to show cause, …like an alternative writ, entails an expenditure of time and effort
of court and counsel that would be wasted if another remedy were subsequently found
adequate and the merits of the dispute, although fully presented, were not determined.”];
see also Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 489–490 [issuing order to
show cause why writ petition should not be granted is necessarily a determination there is
no adequate remedy in the ordinary course of the law]; see also Castaneda v. Municipal
Court (1972) 25 Cal.App.3d 588, 592 [“issuance of an alternative writ and order to show
cause in any case conclusively determines inadequacy of the appellate remedy for that
case”].)
We therefore proceed to consider the parties’ arguments regarding the nature of
section 311.11(c), and whether the trial court was required to sustain petitioner’s
demurrer to counts 1 and 2 as a matter of law. (Babb v. Superior Court (1971) 3 Cal.3d
5.
841, 851 (Babb) [trial court must apply the proper law and may be directed to perform
that duty by writ of mandate].)
II. Section 311.11(c) is a Penalty Provision
A. Background
Petitioner argues he cannot be charged with separate counts of possession under
section 311.11(c) because it is a penalty provision. According to petitioner, there can be
only one count of possession charged under section 311.11(a) with penalty allegations
asserted under section 311.11(c)(1) and (c)(2), which, if proven, raise the potential
maximum penalty. The People maintain section 311.11(c)(1) and (c)(2) articulate new
crimes of child pornography possession for which separate charges are permitted under
section 954.
1. Former Section 311.11
From November 7, 2006, until the statute was amended in 2013, section 311.11
articulated an offense for the possession of child pornography and provided a higher
penalty for those who had been previously convicted of the same or a similar crime or
any attempt to commit those offenses.
“(a) Every person who knowingly possesses or controls any
matter, representation of information, data, or image, including, but not
limited to, any film, filmstrip, photograph, negative, slide, photocopy,
videotape, video laser disc, computer hardware, computer software,
computer floppy disc, data storage media, CD-ROM, or computer-
generated equipment or any other computer-generated image that contains
or incorporates in any manner, any film or filmstrip, the production of
which involves the use of a person under the age of 18 years, knowing that
the matter depicts a person under the age of 18 years personally engaging in
or simulating sexual conduct, as defined in subdivision (d) of
Section 311.4, is guilty of a felony and shall be punished by imprisonment
in the state prison, or a county jail for up to one year, or by a fine not
exceeding two thousand five hundred dollars ($2,500), or by both the fine
and imprisonment.
“(b) Every person who commits a violation of subdivision (a), and
who has been previously convicted of a violation of this section, an offense
6.
requiring registration under the Sex Offender Registration Act, or an
attempt to commit any of the above-mentioned offenses, is guilty of a
felony and shall be punished by imprisonment in the state prison for two,
four, or six years.
“(c) It is not necessary to prove that the matter is obscene in order
to establish a violation of this section.
“(d) This section does not apply to drawings, figurines, statues, or
any film rated by the Motion Picture Association of America, nor does it
apply to live or recorded telephone messages when transmitted,
disseminated, or distributed as part of a commercial transaction.”
2. Possession of Multiple Images Chargeable as Only One Count
In 2007 and 2008, two appellate courts considered whether possession of multiple
images of child pornography could be charged as separate violations of section 311.11(a).
In People v. Hertzig (2007) 156 Cal.App.4th 398 (Hertzig), the defendant was convicted
of 10 counts of possession of child pornography under section 311.11(a) based on his
possession of 30 child pornography videos found on a laptop computer seized from his
residence. (Hertzig, supra, at pp. 400–401.) The separate charges were based on the fact
the videos each separately existed and different child victims appeared in those videos.
(Id. at p. 401.)
On appeal, the defendant argued the possession of multiple child pornography
videos constituted only a single violation of section 311.11(a). (Hertzig, supra, 156
Cal.App.4th at p. 399.) In agreeing with the defendant and reversing and dismissing nine
of the 10 counts, the court considered whether multiple convictions were permitted in
other types of possession cases. (Id. at pp. 402–403.) Hertzig noted that across other
possession cases, two principles emerged: simultaneous possession of multiple items of
one type of contraband constitutes only a single possession violation; and simultaneous
possession of multiple types of contraband in the same location constitutes a single
possession violation. (Id. at p. 402.) In the context of child pornography, the court
7.
reasoned, the defendant’s possession of multiple child pornography videos on his laptop
constituted a single act of possession. (Id. at p. 403.)
A year later, a panel of this court issued a decision in People v. Manfredi (2008)
169 Cal.App.4th 622 (Manfredi) and joined Hertzig in its conclusion multiple images of
child pornography found at one time in one location constitute only one count of
possession. (Manfredi, supra, at pp. 629–634.) Similar to Hertzig, the defendant in
Manfredi was charged with multiple counts of possession of child pornography under
section 311.11(a) based on simultaneous possession of multiple images of child
pornography. (Manfredi, supra, at p. 625.) Different from Hertzig, though, the multiple
images of child pornography in Manfredi were found on different media: multiple
computers, hard drives, discs, and tapes. (Manfredi, supra, at p. 625.) Manfredi
demurred to the criminal complaint, arguing he could be charged with only a single count
of possession of child pornography. (Ibid.) Applying Hertzig, the trial court sustained
the demurrer without leave to amend and dismissed all but one count of possession of
child pornography. (Id. at p. 625.)
Upon the People’s appeal, the Manfredi court affirmed the dismissal of all but one
of the section 311.11(a) possession counts, holding the defendant’s “simultaneous
possession of multiple child pornography materials at the same location is chargeable as
but one criminal offense under [section 311.11(a)].” (Manfredi, supra, 169 Cal.App.4th
at p. 624.) The court observed the other types of possession cases that Hertzig relied on
indicated the statutory categorization of singular possession is not dependent on the items
being found in only one container. (Manfredi, supra, at p. 630.) This made good sense,
the court pointed out, because otherwise it would mean a defendant could be convicted of
only one count of possession of child pornography when there is a massive amount of
child pornography on one item of computer hardware, but could be convicted of two
counts of possession of child pornography when he is in possession of one photograph
and one slide found in separate containers. (Id. at p. 633.)
8.
Moreover, section 311.11(a) criminalizes the possession of “‘any matter’” that
involves the use of a person under the age of 18 years, knowing that the matter depicts a
person under the age of 18 years personally engaging in or simulating sexual conduct.
The court reasoned the word “any” has long been construed statutorily as ambiguously
indicating either the singular or the plural. (Manfredi, supra, 169 Cal.App.4th at p. 633.)
Added to the Legislature’s use of the word “any” in describing the unit of possession, the
court noted the Legislature presumably knew the other types of possession statutes bore a
strong resemblance to section 311.11(a) in terms of describing the unit of possession and
that case law held the property or contraband described in those statutes found at the
same time and place could not be fragmented into multiple crimes. (Manfredi, supra, at
p. 634.) Despite this, the Legislature had not taken any steps to provide that each single
piece of evidence in a child pornography case could be the basis of a separate count.
(Ibid.) The court concluded that it is “within the Legislature’s prerogative, if it so
decides, to amend section 311.11 to describe the unit of possession in singular terms, as it
did for certain possession of weapons crimes …, or it may see fit to create varying grades
of the offense based on the quantity of pornography possessed at one time.” (Manfredi,
supra, at p. 634.)
3. Senate Bill No. 145 Amendments to Section 311.11
In 2013, the Legislature passed Senate Bill No. 145, which, according to the
author, was meant to “set[] meaningful penalties for the most culpable child pornography
possessors, such as those who possess thousands of images of infants and toddlers
engaged in sadistic or masochistic sexual acts.” (Sen. Com. on Public Safety, Analysis of
Sen. Bill No. 145 (2013–2014 Reg. Sess.) as amended Apr. 2, 2013, p. 8.) In the bill
analysis conducted by the Senate Committee on Public Safety, the committee noted the
proposed bill provided higher penalties for possession of child pornography based on the
number of images and the egregious nature of the images. (Id. at p. 10.) The analysis
cited Manfredi and noted that while prosecutors had sought multiple convictions and
9.
penalties in cases where the defendant possessed a large number of images, courts had
interpreted the statute to mean that possession of multiple items of child pornography
constitutes only one crime. (Ibid.) The bill analysis provides that “[t]o address the issue
discussed in Manfredi, this bill authorizes a higher penalty for possession of more than
600 prohibited images, at least 10 of which depicted prepubescent minors or minor under
the age of 12 years. The bill also authorizes a higher penalty where the material depicted
minors engaged in sexual sadism or masochism.” (Ibid.)
After several revisions, Senate Bill No. 145 was signed into law by the Governor
on October 12, 2013, and became effective January 1, 2014. Section 311.11was amended
as follows:
“(a) Every person who knowingly possesses or controls any
matter, representation of information, data, or image, including, but not
limited to, any film, filmstrip, photograph, negative, slide, photocopy,
videotape, video laser disc, computer hardware, computer software,
computer floppy disc, data storage media, CD–ROM, or computer-
generated equipment or any other computer-generated image that contains
or incorporates in any manner, any film or filmstrip, the production of
which involves the use of a person under 18 years of age, knowing that the
matter depicts a person under 18 years of age personally engaging in or
simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is
guilty of a felony and shall be punished by imprisonment in the state prison,
or a county jail for up to one year, or by a fine not exceeding two thousand
five hundred dollars ($2,500), or by both the fine and imprisonment.[2]
“(b) Every person who commits a violation of subdivision (a), and
who has been previously convicted of a violation of this section, an offense
requiring registration under the Sex Offender Registration Act, or an
attempt to commit any of the above-mentioned offenses, is guilty of a
felony and shall be punished by imprisonment in the state prison for two,
four, or six years.[3]
2 Section 311.11(a) was amended nonsubstantively by modifying the words “18 years” to
state “18 years of age” in two instances.
3 No amendment to section 311.11, subdivision (b), was made under Senate Bill No. 145.
10.
“(c) Each person who commits a violation of subdivision (a) shall
be punished by imprisonment in the state prison for 16 months, or two or
five years, or shall be punished by imprisonment in a county jail for up to
one year, or by a fine not exceeding two thousand five hundred dollars
($2,500), or by both the fine and imprisonment, if one of the following
factors exists:
“(1) The matter contains more than 600 images that violate
subdivision (a), and the matter contains 10 or more images involving a
prepubescent minor or a minor who has not attained 12 years of age.
“(2) The matter portrays sexual sadism or sexual masochism
involving a person under 18 years of age. For purposes of this section,
‘sexual sadism’ means the intentional infliction of pain for purposes of
sexual gratification or stimulation. For purposes of this section, ‘sexual
masochism’ means intentionally experiencing pain for purposes of sexual
gratification or stimulation.”
Section 311.11, former subdivisions (c) and (d), were redesignated as
subdivisions (d) and (e), and a new subdivision (f) was created:
“(f) For purposes of determining the number of images under
paragraph (1) of subdivision (c), the following shall apply:
“(1) Each photograph, picture, computer, or computer-generated
image, or any similar visual depiction shall be considered to be one image.
“(2) Each video, video-clip, movie, or similar visual depiction
shall be considered to have 50 images.”
The parties’ dispute concerns the nature of the amendment to
section 311.11(c), which, in light of the background outlined above, we turn to
now.
B. Analysis
The parties’ disagree whether section 311.11(c)(1) and (c)(2) define separate
substantive offenses distinct from section 311.11(a). Petitioner maintains
section 311.11(a) defines the single substantive offense of child pornography possession
while section 311.11(c) states an alternate penalty provision for that offense when at least
one of the two aggravating factors identified in section 311.11(c)(1) and (c)(2) exists. As
11.
such, counts 1 and 2 under section 311.11(c)(1) and (c)(2) do not constitute public
offenses, and the demurrer to the felony complaint should have been sustained pursuant
to section 1004, paragraph (4). 4 The People respond that section 311.11(c)(1) and (c)(2)
define substantive offenses, and thus section 954 permits multiple charges and
convictions under those subdivisions.
Pursuant to section 954, “[a]n accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense … under separate counts .… The prosecution is not required to elect
between the different offenses or counts set forth in the accusatory pleading, but the
defendant may be convicted of any number of the offenses charged .…” (Italics added.)
The issue, therefore, is not the permissibility of separate punishments, but whether
separate charges under section 311.11(c)(1) and (c)(2) are permissible as substantive
offenses. (People v. Gonzalez (2014) 60 Cal.4th 533, 537 [recognizing multiple charges
and multiple convictions can be based on a single criminal act if the charges allege
separate offenses].) 5
The question is one of statutory interpretation. (People v. Wallace (2003) 109
Cal.App.4th 1699, 1702 [determining whether statutory provision states substantive
offense or penalty provision is an issue of statutory interpretation].) Our role is to
ascertain the Legislature’s intent to effectuate the purpose of the law. (People v.
Brookfield (2009) 47 Cal.4th 583, 592.) To determine this intent, we first look to the
words of the statute because they are the most reliable indicator of legislative intent.
4 Section 1004, paragraph 4, provides that the defendant may demur to the accusatory
pleading when it appears the facts stated do not constitute a public offense.
5 In light of our ultimate conclusion that section 311.11(c) is an alternate penalty provision
and given the pretrial posture of the case, we do not consider whether section 311.11(a) could be
a necessarily included offense of section 311.11(c) for which multiple convictions would be
barred. (See People v. Montoya (2004) 33 Cal.4th 1031, 1034 [judicially created exception to
§ 954 precludes convictions based on necessarily included offenses].)
12.
(Walker v. Superior Court (2021) 12 Cal.5th 177, 194.) We consider the statutory
language in context, keeping in mind the nature and obvious purpose of the statute.
(People v. Brookfield, supra, at p. 592.) If the relevant statutory language is ambiguous,
we look to appropriate extrinsic sources, including the legislative history, for further
insights. (Walker v. Superior Court, supra, at p. 194.)
Every angle from which section 311.11(c) is examined indicates it is an alternate
penalty provision under which separate counts and convictions do not lie. Turning to the
statute itself, the language and structure of section 311.11 indicate the Legislature
intended section 311.11(c) to be a penalty provision.
Sentence enhancements, penalty provisions, and substantive offenses are distinct
provisions. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898 (Robert L.).)
Statutory provisions describing substantive crimes “generally define criminal acts.”
(People v. Ahmed (2011) 53 Cal.4th 156, 163.) A substantive offense defines or sets
forth elements of a new crime. (People v. Bright (1996) 12 Cal.4th 652, 661 (Bright),
overruled on another ground in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6;
Robert L., supra, at p. 899.) Differently, sentence enhancements and alternate penalty
provisions increase the punishment for an already defined criminal act. (People v.
Ahmed, supra, at p. 163; Bright, supra, at p. 661.) “They focus on aspects of the criminal
act that are not always present and that warrant additional punishment.” (People v.
Ahmed, supra, at p. 163.) While these statutes may resemble substantive offenses in that
they impose additional punishment based on a factual finding that a defendant engaged in
particular conduct while committing a crime, they are not separate offenses because they
do not define criminal acts. (Ibid.; see People v. Hernandez (1988) 46 Cal.3d 194, 207–
208 [just because an enhancement articulates an element in addition to those necessary
for the substantive crime does not imply a new crime has been defined], abrogated on
another ground in People v. King (1993) 5 Cal.4th 59, 78, fn. 5.)
13.
Further, while sentence enhancements and penalty provisions generally serve
similar functions, there is a difference between the two, which “is subtle but significant.”
(People v. Jones (2009) 47 Cal.4th 566, 578.) A sentence enhancement is “‘an additional
term of imprisonment added to the base term.’” (Robert L., supra, 30 Cal.4th at p. 898,
quoting Cal. Rules of Court, former rule 4.405(c) & citing People v. Jefferson (1999) 21
Cal.4th 86, 101.) By contrast, a penalty provision “prescribes an added penalty to be
imposed when the offense is committed under specified circumstances.” (Bright, supra,12 Cal.4th at p. 661.) In other words, it is an “‘alternate penalty for the underlying felony
itself, when the jury has determined that the defendant has satisfied the conditions
specified in the statute.’” (People v. Jones, supra, at p. 578.) “The jury does not decide
the truth of the penalty allegation until it first has reached a verdict on the substantive
offense charged.” (Bright, supra, at p. 661.)
Thus, in Bright, the California Supreme Court determined that section 664,
subdivision (a), 6 which applies to willful, deliberate and premeditated attempted murder,
“sets forth a penalty provision prescribing an increased sentence … to be imposed upon a
defendant’s conviction of attempted murder when the additional specified circumstances
are found true by the trier of fact.” (Bright, supra, 12 Cal.4th at p. 669, fn. omitted.) The
additional circumstance specified by section 664, subdivision (a), is whether the
attempted murder is willful, deliberate and premeditated—it focuses on this aspect of
how the substantive offense was committed.
6 Section 664, former subdivision (a), provided that “[i]f the offense so attempted is
punishable by imprisonment in the state prison, … the person guilty of that attempt is punishable
… for one-half the term of imprisonment prescribed upon a conviction of the offense so
attempted; provided, however, that if the crime attempted is willful, deliberate, and premediated
murder, as defined in Section 189, the person guilty of that attempt shall be punishable by
imprisonment in the state prison for life with the possibility of parole .…” The specific penalty
of life imprisonment with the possibility of parole “‘if the crime attempted is willful, deliberate,
and premeditated murder, as defined in Section 189,’” was added to the statute by a 1986
legislative amendment. (Bright, supra, 12 Cal.4th at p. 662, quoting Stats. 1986, ch. 519, § 2,
p. 1859.)
14.
Somewhat more recently, in People v. Muhammad (2007) 157 Cal.App.4th 484(Muhammad), the First District Court of Appeal considered whether the stalking statute
under section 646.9, subdivisions (b) and (c), stated alternate penalty provisions or,
instead, a series of substantive stalking crimes. (Muhammad, supra, at p. 486.)
Section 646.9, then and now, sets out the offense of stalking in section 646.9,
subdivision (a) (section 646.9(a)), and makes the crime punishable as a misdemeanor or a
felony. In subdivisions (b), (c)(1), and (c)(2), the statute provides greater punishments
for violations of section 646.9(a) that are committed under different situations. For
example, if the stalking offense is committed when other types of protective orders are
already in place, the crime is a felony with a greater base sentencing range (§ 646.9,
subd. (b)); if the defendant has suffered a prior enumerated conviction, the stalking
offense may be punished as a felony with a greater base sentencing range (§ 646.9,
subd. (c)(1)); and if the defendant has a prior stalking conviction, the current stalking
offense is a felony subject to a greater base sentencing range (§ 646.9, subd. (c)(2)).
The defendant in Muhammad was convicted on four separate counts of stalking
under section 646.9, subdivisions (a), (b), (c)(1) and (c)(2), based on a single, identical
course of conduct. (Muhammad, supra, 157 Cal.App.4th at p. 489.) On appeal, the
defendant argued the subdivisions did not each define separate offenses, but were
alternate punishments for the single offense of stalking defined in section 646.9(a).
(Muhammad, supra, at p. 490.) The People argued the subdivisions described separate
substantive offenses for which multiple convictions under section 954 were permitted.
(Muhammad, supra, at p. 490.) After reviewing pertinent case law, including Bright and
Robert L., the court explained that only section 646.9(a) sets out the substantive crime of
stalking, while subdivisions (b) and (c), after referring to subdivision (a), focus on the
criminal history of the defendant that is not present for all perpetrators. (Muhammad,
supra, at p. 493.) The effect of section 646.9, subdivisions (b) and (c), the court
reasoned, was to create a higher base term for stalking when it is committed by a
15.
defendant with a particular criminal history. (Muhammad, supra, at p. 494.) As such, the
jury would not consider the truth of these penalty facts until it reached a verdict on the
substantive stalking offense under section 646.9(a). (Muhammad, supra, at p. 494.) The
court concluded section 646.9, subdivisions (b) and (c) were penalty provisions triggered
when the offense of stalking was committed by a person with the specified criminal
history and only one conviction could be sustained. (Muhammad, supra, at p. 494.)
Here, the structure and wording of section 311.11(c) bears the hallmarks of an
alternate penalty provision like that in Muhammad. Similar to section 646.9, the
substantive crime of child pornography possession is set out in section 311.11(a). This
subdivision contains a definition of child pornography—which includes any matter the
production of which involves “the use of a person under 18 years of age … engaging in
or simulating sexual conduct.” (§ 311.11(a).) To be guilty of possession, the subdivision
provides a person must knowingly possess or control the matter involved (e.g., images,
film, data, slides, videos, etc.); and must know that this matter depicts child pornography
as defined by the statute. (Ibid.) Much like section 646.9, subdivisions (b) and (c),
section 311.11(c) does not contain a definition of the child pornography possession
offense; instead, it refers to a person who commits a violation of section 311.11(a).
Section 311.11(c) then sets out a higher maximum sentence if one of the factors
articulated in section 311.11(c)(1) or (c)(2) exist. Section 311.11(c) does not become
applicable until the factfinder first determines there is a violation of section 311.11(a),
which defines the criminal acts that comprise the offense of child pornography
possession.
The People argue section 311.11(c) is not a penalty provision because the
additional factors articulated are unlike those in section 646.9, subdivisions (b) and (c)—
i.e., the factors under section 311.11(c)(1) and (c)(2) are not unrelated to how the offense
was committed. The People reason that an actual penalty provision for a violation of
section 311.11(a) would relate to something like possession of child pornography while
16.
being on felony probation in another case or might involve possession of child
pornography within a certain distance of an elementary school. Instead, the People argue,
section 311.11(c) criminalizes specific acts of possession by amounts and types of child
pornography.
This argument is unpersuasive for two reasons. First, we find no authority
limiting a penalty provision to describing circumstances unrelated to acts of the crime
itself, and the People cite none. Rather, in Bright, our high court concluded section 664,
subdivision (a), was a penalty provision. (Bright, supra, 12 Cal.4th at p. 669.) That
provision prescribed a greater punishment if an attempted murder was committed in a
particular manner—willful, deliberate and premeditated—thus focusing on an aspect of
acts or conduct that comprised the underlying offense. (Ibid.) Subsequently in People v.
Hernandez, the high court explained the fact that an enhancement includes an element in
addition to those necessary to prove a violation of the substantive offenses does not imply
a newly defined crime: “Enhancements typically focus on an element of the commission
of the crime or the criminal history of the defendant which is not present for all such
crimes and perpetrators and which justifies a higher penalty than that prescribed for the
offenses themselves. That is one of the very purposes of an enhancement’s existence.”
(People v. Hernandez, supra, 46 Cal.3d at pp. 207–208, italics added.) The fact that
section 311.11(c) focuses on an aspect of the possession offense—the nature and amount
of prohibited material—does not preclude it from being a penalty provision or transform
it into newly defined crimes.
Second, as already noted, section 311.11(c) does not set out any of the acts that
constitute child pornography possession. It neither defines child pornography nor
indicates the requirements necessary to establish possession. Section 311.11(c) expressly
predicates its application on the commission of the child pornography possession offense
as set out in section 311.11(a) and then lists additional “factors” that, if found to exist,
heighten the maximum possible punishment for the crime defined in section 311.11(a).
17.
There is no substantive crime articulated by section 311.11(c). (See Robert L., supra, 30
Cal.4th at pp. 899–900 [§ 186.22, subd. (d), not a substantive offense because it does not
define or set forth elements of a new crime]; see also Muhammad, supra, 157
Cal.App.4th at p. 493 [subsequent provisions that did not set out elements of the offense
were penalty provisions].)
Additionally, section 311.11(c)’s use of the word “factors” to describe the
materials articulated in section 311.11(c)(1) and (c)(2) also suggests this is a penalty
provision meant to affect sentencing. We note this view of section 311.11(c) is reflected
in the Judicial Council pattern jury instruction for possession of child pornography,
which designates section 311.11(c)(1) and (c)(2) as sentencing factor allegations. (See
CALCRIM No. 1145.)
The People contend that to construe section 311.11(c) as a penalty provision
would lead to an absurd result because where both factors under section 311.11(c)(1) and
(c)(2) exist, a defendant would be subject to the same maximum punishment and number
of convictions as those defendants who possessed matter under only one subparagraph of
section 311.11(c).
It is true that multiple convictions under section 311.11(c) would be permissible
under section 954 if section 311.11(c) created substantive offenses, but that would not
result in greater punishment. As the unit of possession defined in section 311.11(a) (“any
matter”) was not amended, all the different types and amounts of prohibited matter
discovered at one location at one time constitute one act of possession. (Manfredi, supra,
169 Cal.App.4th at pp. 629–634.) Under section 654, subdivision (a), “[a]n act or
omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.…” 7 Thus, even if section 311.11(c)(1) and
7 Prior to January 1, 2022, section 654, subdivision (a), stated that “[a]n act or omission
that is punishable in different ways by different provisions of law shall be punished under the
18.
(c)(2) stated different substantive offenses, only one conviction would be punishable
under section 654 where all the matter, as alleged in this case, was discovered in one
location constituting one act of possession. 8 Interpreting section 311.11(c) as an alternate
penalty provision does not result in less punishment.
Moreover, section 311.11(c) elevates the upper maximum term of imprisonment to
five years if the offense is sentenced as a felony, but the sentencing judge nonetheless
retains the discretion to sentence the offense as a misdemeanor and impose jail time
and/or a fine. In cases where both factors under section 311.11(c)(1) and (c)(2) are
alleged and found true, the sentencing judge has the discretion to consider those
circumstances at sentencing and impose a harsher punishment than might have been
imposed if only one factor was proved true. Construing section 311.11(c) as a penalty
provision does not limit a sentencing judge’s ability to punish more egregious
circumstances more harshly.
To the extent the People argue section 311.11(c) describes a greater grade or
degree of the possession offense, we are aware of no statute creating degrees of an
offense without explicit language indicating so. In Bright the court observed that just
because the Legislature amended the attempted murder statute to punish more harshly
those attempted murders that were willful, deliberate and premediated—an aggravated
circumstance—was not a basis to conclude the Legislature “sought to carve out a
separate, higher degree of the crime of attempted murder.” (Bright, supra, 12
Cal.App.4th at p. 668.)
provision that provides for the longest potential term of imprisonment .…” (See Stats. 2021,
ch. 441, § 1.)
8 Separate and distinct acts of possession may occur when child pornography is discovered
in separate locations. (See People v. Sample (2011) 200 Cal.App.4th 1253, 1259 [act of
possessing child pornography found in backpack separate and distinct from possessing child
pornography found in storage shed].)
19.
Finally, the People assert the legislative history of Senate Bill No. 145, which
amended section 311.11(c), supports a conclusion section 311.11(c) was meant to create
new substantive offenses. The People note the legislative history of Senate Bill No. 145
contains statements referring to section 311.11(c) as “aggravated child pornography
possession offenses” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 145 (2013–
2014 Reg. Sess.) as amended Apr. 2, 2013, p. 2) and stating the bill would “create[e] new
categories of offenses” (Assem. Com. on Appropriations, Analysis of Sen. Bill No. 145
(2013–2014 Reg. Sess.) Aug. 21, 2013, p. 1.) Moreover, the People assert, when
Manfredi held that possession of multiple images of child pornography found in the same
location and at the same time could not be fragmented into separate counts, the court
added that the Legislature could amend section 311.11 to describe the unit of possession
in singular terms or “create varying grades of the offense based on the quantity of
pornography possessed at one time.” (Manfredi, supra, 169 Cal.App.4th at p. 634.) The
People contend the Legislature did exactly that by creating varying “grades” of
possession of child pornography under section 311.11(c)(1) and (c)(2).
Even assuming this legislative history indicates a latent ambiguity in the statute, it
does not persuade us the Legislature intended section 311.11(c)(1) and (c)(2) to be
substantive offenses. Various legislative committee bill analyses reflect the Legislature’s
intent to punish more harshly those who possess more egregious forms of child
pornography by providing higher penalties—a phrase used throughout all of the
legislative analyses related to Senate Bill No. 145—for possessing a certain amount
and/or type of child pornography, not through more convictions.
For example, a Senate Public Safety Committee bill analysis noted that because
case law, specifically Manfredi, concluded the word “‘any’” in the child pornography law
is ambiguous, a defendant who possessed multiple items of child pornography on one
occasion is guilty of only one crime. The analysis then added that “[t]o address the issue
discussed in Manfredi, this bill authorizes a higher penalty for possession of” the matter
20.
articulated in section 311.11(c). (Sen. Com. on Public Safety, Analysis of Sen. Bill
No. 145 (2013–2014 Reg. Sess.) as amended Apr. 2, 2013, p. 10.)
Senate Bill No. 145’s author commented that the bill addressed concerns about
prior proposed legislation in 2009, which had attempted to allow additional counts of
child pornography for each victim and/or piece of media, but was criticized for
potentially resulting in thousands of additional counts and potentially hundreds of
additional years of incarceration. (See Assem. Com. on Public Safety, Analysis of Sen.
Bill No. 145 (2013–2014 Reg. Sess.) as amended May 28, 2013, p. 5.) The solution to
these concerns Senate Bill No. 145 crafted was not based on securing greater punishment
through more convictions, which section 654 would generally preclude in any event, it
was to create higher penalties when the possession offense was committed with certain
aggravating factors.
Indeed, the final senate floor analysis of the Senate Rules Committee, among other
committee analyses, described the proposed section 311.11(c) as providing “that where a
defendant is convicted of possession of child pornography and one of the following
circumstances [in section 311.11(c)(1) or section 311.11(c)(2)] is established, the
defendant shall be guilty of an alternate felony-misdemeanor .…” (Sen. Rules Com., Off.
of Sen. Floor Analyses, Analysis of Sen. Bill No. 145 (2013–2014 Reg. Sess.) as
amended Sept. 3, 2013, p. 5, par. 1, italics added; see Assem. Com. on Public Safety,
Analysis of Sen. Bill No. 145 (2013–2014 Reg. Sess.) as amended May 28, 2013, p. 1;
Assem. Com. on Appropriations, Analysis of Sen. Bill No. 145 (2013–2014 Reg. Sess.)
as amended Aug. 21, 2013, p. 1, par. 1.) These analyses indicate the Legislature intended
a penalty provision where conviction of the substantive crime occurs first; then, when and
if penalty provision circumstances are found true, a higher penalty may apply. (See
People v. Jefferson, supra, 21 Cal.4th at p. 101 [A penalty provision “sets forth an
alternate penalty for the underlying felony itself, when the jury has determined that the
defendant has satisfied the conditions specified in the statute”].) Despite referring to
21.
“new categories” of child pornography offenses and “newly defined offenses” in at least
one early committee analysis, 9 the legislative analyses nonetheless described and
envisioned section 311.11(c) to operate as a penalty provision.
In sum, the structure and language of the statute indicates the substantive child
pornography possession offense is defined and described in section 311.11(a) while
section 311.11(c) contains an alternate penalty provision when aggravating factors are
established; section 311.11(c) does not create separate substantive offenses. The statute
reflects the Legislature’s intent to increase penalties for more egregious types of child
pornography possession while allowing prosecutors and judges to retain flexibility and
discretion in charging and sentencing the offense. Interpreting section 311.11(c) to be an
alternate penalty provision conforms to the Legislature’s intent to create higher penalties
where aggravating factors are present and does not create absurd results in terms of
punishment.
As section 311.11(c) is an alternate penalty provision and does not state
substantive offenses, sentencing factor allegations under section 311.11(c)(1) and (c)(2)
cannot be pleaded as separate offenses in separate counts under section 954. The trial
court was required to sustain petitioner’s demurrer. (Babb, supra, 3 Cal.3d at p. 851
[while mandamus cannot be issued to control a court’s discretion, a writ will lie when
that discretion can be exercised in only one way].)
9 See Assembly Committee on Appropriations, Analysis of Sentate Bill No. 145 (2013–
2014 Reg. Sess.) as amended August 21, 2013, page 1 and Senate Committee on Public Safety,
Analysis of Senate Bill No. 145 (2013–2014 Reg. Sess.) as amended April 2, 2013, page 12.
22.
DISPOSITION
Let the writ of mandate issue directing the superior court to vacate its March 30,
2021, order overruling petitioner’s demurrer to counts 1 and 2, and enter a new order
sustaining the demurrer with leave to amend. The order to show cause is discharged, and
the stay of proceedings below is vacated.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
POOCHIGIAN, J.
23.