Opinion
Page 1299b
89 Cal.App.4th 1299b THE PEOPLE, Plaintiff and Respondent, v. MAC DAVID COCHRAN, Defendant and Appellant. D034916. California Court of Appeal, Fourth District, First Division June 14, 2001[Modification of opinion (89 Cal.App.4th 103 107 Cal.Rptr.2d 119) on denial of petition for rehearing.]
This modification requires editorial changes in the second paragraph of the summary, page 103, and headnote (4a, 4b), page 105 of the advance report. In the bound volume report, the second paragraph of the summary will be changed to read as set out above. The following sentence will be added at the end of headnote (4a, 4b), to read as follows: "However, since the evidence was sufficient to support a finding that defendant employed a minor to create pornographic images, he was guilty of the lesser included offense of Pen. Code, section 311.4, subd. (c), which does not require proof of a commercial purpose." Movement of text will be made affecting pages 106-121.
[REVIEW GRANTED BY CAL. SUPREME COURT]
(Opinion by Kremer, P. J., with McDonald, J., concurring. Concurring and dissenting opinion by Benke, J. (see p. 116).)
Page 1299c
OPINION
KREMER, P. J.
It is ordered that the opinion filed herein on May 17, 2001, be modified as follows:
1. On page 1 of the majority opinion, the second sentence of the editorial paragraph, beginning "Affirmed in part" is deleted and the following sentence is inserted in its place:
"Affirmed as modified."
2. On page 16 of the majority opinion, the last paragraph in part II [89 Cal.App.4th 115, advance report, 3d full par.], beginning "Cochran's conviction of section 311.4, subdivision (b) must be" is deleted and the following paragraph is inserted in its place:
Cochran's challenge to his conviction under section 311.4 is limited to the finding he had a commercial purpose. He does not challenge the sufficiency of the evidence to support a finding he employed a minor to create pornographic images. Nor, given the evidence in this case, would such a challenge succeed. The record therefore indicates that although he may not have been guilty of section 311.4, subdivision (b), he was guilty of the lesser included offense of section 311.4, subdivision (c), which does not require proof of a commercial purpose. Accordingly, we order the judgment modified to reflect a conviction of section 311.4, subdivision (c). (See section 1260; People v. Matian (1995) 35 Cal.App.4th 480, 488 [41 Cal.Rptr.2d 459] [appellate court has the power to modify a judgment to reflect a conviction of a lesser included offense when the evidence is insufficient to support conviction of the greater offense].)
On page 16 of the majority opinion [89 Cal.App.4th 115, advance report], the Disposition paragraph is deleted and the following paragraph is inserted in its place:
Cochran's conviction of section 311.4, subdivision (b) is ordered modified to a conviction of section 311.4, subdivision (c) and, as modified, the judgment is affirmed.
This modification effects a change in the judgment.
Respondent's petition for rehearing is denied.