Opinion
G059684
02-15-2022
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER DOMINGUEZ, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 13WF3156, Michael A. Leversen, Judge. Affirmed in part, reversed in part and remanded for resentencing.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
A jury convicted appellant Francisco Javier Dominguez of 15 sexual offenses involving 3 victims: Unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c) (counts 1 & 13)); oral copulation of a minor (§ 288a, subd. (b)(1) (counts 2, 3, 4, 5, 6, & 15)); sodomy of a person under the age of 18 (§ 286, subd. (b)(1) (count 7)); contacting a child with intent to commit oral copulation (§ 288.3, subd. (a) (count 8)); contacting a child with intent to possess child pornography (§ 288.3, subd. (a) (counts 9, 11, & 12)); and possession of child pornography (§ 311.11, subd. (a) (counts 10 & 14)). The trial court found true allegations appellant had a prior strike conviction (§§ 667, subd. (d) & 1170.12, subds. (b) & (c)(1)), and two prior prison commitments (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
The prosecutor dismissed one of the prison priors, the court struck the strike allegation, and appellant was sentenced to a prison term of 13 years 4 months, comprising an upper term of 3 years for count 1, consecutive subordinate 8-month terms for counts 2 through 15, and a consecutive year for the prison prior. The trial court subsequently recalled appellant's sentence pursuant to section 1170, subdivision (d)(1), and struck the prison prior enhancement, resulting in a modified sentence of 12 years 4 months. (See People v. Smith (2020) 46 Cal.App.5th 375, 396; Senate Bill No. 136 (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020), amending § 667.5, subd. (b).)
Appellant raises a single claim: His convictions for two counts of possessing child pornography were based on a single possession offense, and one of the two counts must therefore be reversed.
FACTS
Because appellant raises a narrow contention on appeal, and there are no factual disputes, we need not lay out the underlying facts in great detail. Suffice it to say, appellant groomed three teenage girls into sexual relationships with him and gave them money, food, rides to and from school, and gifts in exchange for sex acts, photos, and videos. Counts 1 through 10 addressed appellant's offenses involving then-16-year-old K.G. during the Summer and Fall of 2013. Counts 13, 14, and 15 involved 17-year-old M.C. and her interactions with appellant in September 2013. Relevant to the child pornography offenses charged in counts 10 and 14, a search of appellant's iPhone revealed hundreds of photos and 25 videos of appellant, K.G., and M.C. engaging in sexual activity.
Counts 11 and 12 involved 16-year-old T.T., who appellant contacted on several occasions in early 2013 and attempted to cajole into sending him pornographic pictures and videos of herself in exchange for money. No photos or videos depicting T.T. were found on appellant's iPhone, but his text message solicitations to her were recovered.
Appellant now contends that because the images and videos of K.G. and M.C. depicting sexual conduct were found together on his iPhone, there was only one offense of possession of child pornography under section 311.11, subdivision (a), not two. We agree.
DISCUSSION
Section 311.11, subdivision (a) provides in pertinent part: "Every person who knowingly possesses or controls any matter . . . knowing that the matter depicts a person under the age of 18 years of age personally engaging in or simulating sexual conduct . . . is guilty of a felony . . . ."
Appellant was charged with two almost identical counts of possession of child pornography: In count 10, "[o]n or about and between July 09, 2013 and October 08, 2013," appellant "did knowingly and unlawfully possess and control matter, knowing that the matter depicted a person under the age of eighteen (18) years personally engaging in and personally simulating sexual conduct;" and in count 14, "[o]n or about and between June 01, 2013 and October 08, 2013" appellant "did knowingly and unlawfully possess and control matter, knowing that the matter depicted a person under the age of eighteen (18) years personally engaging in and personally simulating sexual conduct[.]"
Neither count identified the person or persons depicted, a more specific date the "matter" was possessed, nor further identify the "matter" itself.
For these two counts, the jury was instructed with CALCRIM No. 1145 and told: "The defendant is charged in counts 10 and 15 [sic] with possessing matter that shows a minor engaged in or simulating sexual contact . . . . [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant possessed or controlled matter that contained an image of a minor personally engaging in or simulating sexual conduct; [¶] Two, the defendant knew that he possessed or controlled the matter; [¶] And, three, the defendant knew that the matter contained an image of a minor personally engaging in or simulating sexual conduct. [¶] 'Matter,' as used in this instruction, means any visual work, including any film, filmstrip, photograph, negative, slide, photocopy, video recording, [or] computer generated media. [¶] . . . [¶] A minor is anyone under the age of 18. [¶] . . . [¶] 'Sexual conduct' means actual or simulated sexual intercourse or oral copulation or anal intercourse or anal oral copulation. An act is simulated when it gives the appearance of being sexual conduct." Like the charges, the jury instruction did not reference an individual "minor" depicted in the "matter," individual items or the specific dates they were possessed, nor did it further specify the type of matter possessed.
However, the verdict forms specify the child pornography appellant was convicted of possessing was "of" K.G. in count 10, and "of" M.C. in count 14. Therefore, although neither the statute, the charging document, nor the jury instruction distinguished the two counts based on the minor depicted, the jury's verdict forms did. This theory was echoed in the prosecutor's closing argument, where he told the jury: "[C]ount 10, possessing child pornography . . . that's what we have for [K.G.]" and, as for M.C., "[count] 14 is possession of child pornography. . . ." And later, again distinguishing the counts based on the minor depicted, he said to the jury, "Possessing child pornography[, ] [w]e have all those videos" [of K.G.]. Check." And as for M.C., "[c]hild pornography[, ]" appellant "has that video. It clearly shows oral copulation. It's that simple." Would that it were.
Appellant insists this misconstrues the offense, and there was but a single act of possession of child pornography, regardless of whether there were two different minors depicted in "matter" found on appellant's iPhone after it was seized by police on October 8, and later unencrypted.
Respondent counters there were two "separate, not simultaneous" incidents of child pornography possession. In doing so, respondent characterizes the offense as "obtaining" child pornography, not possessing it, and concludes that "obtaining child pornography of separate victims at separate times . . . constitutes repeated violations of section 311.11." (Italics added.) However, the term "obtain" is not to be found in the statute, the jury instruction, or the jury's verdicts, and respondent provides no authority for concluding the two terms are synonymous in this context. And from this non sequitur, just as the prosecutor below, respondent parses these incidents based on the number of victims depicted, and argues count 10 was based on the pictures and videos of appellant and K.G. engaging in various sexual acts over the course of several months, and count 14 was based on the video recording of appellant and M.C. engaging in oral copulation. Respondent then concludes appellant's possession of child pornography created - or "obtained" - at separate times and involving separate minors supports similarly separate convictions in counts 10 and 14. Appellant has the better argument.
Elsewhere in his brief, and again without supporting authority, respondent similarly attempts to finesse his argument by mischaracterizing the offense as "atta in[ing] possession of pornographic images of [K.G.] and [M.C.] on separate dates," and as "offenses . . . against separate victims." (Italics added.)
We emphasize the issue raised here is one of multiple convictions, not multiple punishments. (Compare §§ 654 and 954.)
Multiple courts have determined that as a matter of statutory interpretation, "simultaneous possession of multiple child pornography materials at the same location was chargeable as but one criminal offense" under section 311.11, subdivision (a). (People v. Manfredi (2008) 169 Cal.App.4th 622, 624 (Manfredi); cf. People v. Mahoney (2013) 220 Cal.App.4th 781, 796 (Mahoney) [" [A] s a matter of law, possession of multiple images constitutes one violation of section 311.11, subdivision (a)"]; cf. People v. Hertzig (2007) 156 Cal.App.4th 398, 403 (Hertzig) ["The act proscribed by section 311.11 is the act of possessing child pornography, not the act of abusing or exploiting children," and "defendant violated [section 311.11] by the solitary act of possessing the proscribed property"].)
In Manfredi, supra, the defendant possessed a computer and compact discs containing numerous images, and the prosecution charged one count per image. (Id. at p. 625.) Similarly, in Hertzig, supra, the defendant had 30 videos on his laptop computer and was charged with 10 counts "based on the separate existence of each pornographic video and the fact different child victims appeared in the videos." (Id. at p. 401.) In Mahoney, supra, the defendant possessed hundreds of images on four computers, but the prosecution filed only a single count. (Id. at pp. 783-786.) In affirming, the court noted section 311.11, subdivision (a) is an "all or nothing proposition," and thus there was no need for a unanimity instruction as to which of the images "constituted the crime." (Id. at p. 796, citing Manfredi, supra, and Hertzig, supra.)
Respondent attempts to distinguish these cases by arguing that unlike those cases, here there was a "lack of 'simultaneous possession.'" Not so. All the pornographic "matter" at issue - the videos of K.G. and M.C., and the photos of K.G. -was found in one place at one time: stored in appellant's iPhone, which was taken from his possession on October 8, 2013.
Moreover, respondent's argument proves too much. Taking it to its logical conclusion, in a prosecution of a defendant who has amassed a huge collection of child pornography on his computer, each item of which depicts a different minor and was "obtained" on a different day, the prosecution would be entitled to charge a separate count of violating section 311.11, subdivision (a) for each and every image or video in that collection. Instead of a single count of possessing his child pornography collection at a particular time and place, there could be as many counts as there are images and minors depicted. This is not the law in this state.
Respondent also suggests this case is like People v. Sample (2011) 200 Cal.App.4th 1253, but that case is distinguishable in that it involved child pornography found on two different computers, in two separate locations, at two different times. (Id. at pp. 1258-1259.) Moreover, there is no mention in People v. Sample of the number of minors depicted, when and where the "matter" was created or "obtained," or even if it was the same "matter" on both computers. In contrast, here the "matter" at issue was found on appellant's single iPhone seized by police on October 8, 2013 - one time, one location.
Respondent also tries to analogize to cases involving violations of section 496 - receiving or concealing stolen property - but the same logical flaw permeates this argument. His cited cases involved receiving stolen property on separate dates and taken from separate victims, i.e., obtaining stolen property, not merely possessing it in one place at one time. Similarly, respondent cites People v. Whitmer (2014) 59 Cal.4th 733, but again, that case is factually distinguishable insofar as it involved the manager of a motorcycle dealership who arranged for the fraudulent sales of 20 different vehicles to fictitious buyers, and who was convicted of 20 counts of grand theft for 20 separate fraudulent sales on 13 different dates. (Id. at p. 735.)
We adopt the reasoning in Manfredi, Hertzig, and Mahoney, and hold that appellant's possession of multiple images of child pornography on his iPhone as a result of his recording and photographing K.G. and M.C. was a single violation of section 311.11, subdivision (a), prohibiting the possession of child pornography. Any other construction allows for fragmentation of the offense and violates the legislative intent embodied in section 311.11, that the possession of multiple images of child pornography "found at the same time and in the same place," constitutes a single act of possession. (Manfredi, supra, 169 Cal.App.4th at p. 634.) Indeed, that was precisely what Manfredi and Hertzig addressed by prohibiting splitting this unitary possession crime. Consequently, we agree with appellant that under the facts of this case, he can only be convicted of one count of violating section 311.11, subdivision (a).
In sum, appellant was charged with possession, not production, creation, or even "obtaining" child pornography. Filming, imaging, creating, and "obtaining" items of child pornography are proscribed by different sections of the Penal Code, but not the one the prosecutor charged in this matter. (See, e.g., People v. Shields (2011) 199 Cal.App.4th 323, 332 [multiple convictions proper for employment or use of a minor to perform prohibited acts in order to create multiple items of child pornography (§ 311.4, subd. (c))]; People v. Haraszewski (2012) 203 Cal.App.4th 924, 944 [possession of child pornography with intent to distribute or exhibit is a crime distinguishable from "mere possession" of child pornography (§311.2, subd. (d))]; see also § 311.3 [development, duplication, printing, or exchanging of material depicting the sexual exploitation of a child]; cf. Hertzig, supra, 156 Cal.App.4th at p. 403 ["The act proscribed by section 311.11 is the act of possessing child pornography, not the act of abusing or exploiting children"].) Thus, the fact that the photos and videos were taken or recorded at different dates and times, and depicted two different minors, is irrelevant. The offense is one of possession of child pornography, not "obtaining" it or "attaining possession" of it. Similarly, there is nothing in the statute, the jury instruction, nor any case construing section 311.11, subdivision (a), to suggest separate violations arise when the pornographic matter depicts more than one minor, and respondent provides no authority to the contrary.
"It is within the Legislature's prerogative, if it so decides, to amend section 311.11" to more granularly describe the units of possession of child pornography in this context. (Manfredi, supra, 169 Cal.App.4th at p. 634.) Unless and until it does so, however, section 311.11, subdivision (a) remains a unitary possession offense.
DISPOSITION
Appellant simultaneously possessed the images and videos that formed the bases for counts 10 and 14. Consequently, only one conviction is allowed. (Manfredi, supra, 169 Cal.App.4th at p. 624.) The conviction on count 14 is reversed and the sentence on that count is vacated. The matter is remanded to the trial court to strike the conviction on count 14 and resentence appellant to a term no greater than his original sentence.
Relevant to that resentencing, Senate Bill No. 567 (2021-2022 Reg. Sess.) made the middle term the presumptive sentence for a term of imprisonment unless certain circumstances exist (see Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2)), and limited a trial court's ability to impose an aggravated term of imprisonment absent the existence of specified conditions. (§ 1170, subd. (b)(1)-(3), as amended by Stats. 2021, ch. 731, § 1.3.) Because resentencing here will occur after the effective date of the amendments to section 1170 made by Senate Bill No. 567, and because the trial court originally sentenced appellant to an aggravated term of three years on Count 1, in exercising its resentencing discretion the trial court shall apply section 1170 as it reads effective January 1, 2022. (See In re Estrada (1965) 63 Cal.2d 740; cf. People v. Lopez (2019) 42 Cal.App.5th 337, 342 [amendments to § 667.5, subd. (b) enhancements apply retroactively].) We express no opinion as to how that discretion should be exercised.
Appellant has asked permission to file a supplemental brief seeking to challenge imposition of administrative collection fees in his case on the ground they were no longer collectible under legislation effective January 1, 2022 - legislation he could not so challenge earlier because it had not been passed when he filed his brief in the case. The legislation does apply to him since his case was not final on January 1, and the issue was not raised in the trial court, it can be raised on remand. This makes the supplemental briefing issue moot in this court and permission to file is denied without prejudice to the issue being raised below.
Following resentencing, the court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: GOETHALS, J., SANCHEZ, J.