Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06SF0056, M. Marc Kelly, Judge.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Fybel, J., and Ikola, J.
Appellant Steven Edward Riddle was convicted by a jury of one count of violating Penal Code section 288, subdivision (c)(1), one count of attempted violation of that section, and one count of violating Penal Code section 311.4, subdivision (c). The court sentenced him to the upper term of three years on the section 311.4 count, and one year each on the other two counts to be served concurrently with the sentence on the primary count.
I
We describe the facts briefly. Riddle was a 54-year-old man trolling Internet chat rooms for young girls. He struck up a relationship with a 14-year-old girl, sent her a cellular telephone with a camera, and asked her to take pictures of herself without clothes. She sent him several photographs of herself using the telephone he sent her: some partially nude, and at least one totally nude. He set up a meeting at a local Holiday Inn to “take her virginity,” but by then the police had been alerted and they met him there instead.
II
A. Post-Miranda Statements
Riddle first challenges the trial court’s pretrial ruling, made after an Evidence Code section 402 hearing, which allowed the prosecution to introduce certain statements made by him to the police.
When the arresting officer first met Riddle at the hotel she asked him numerous questions about why he was there. It was only after she had talked with him for some time that she arrested him and gave him the Miranda warnings. She then questioned him some more. The district attorney conceded the pre-Miranda statements were inadmissible and told the court he would not attempt to introduce them; but, he argued the post-Miranda statements were admissible and he intended to introduce them as part of the prosecution’s case-in-chief. The court concluded the post-Miranda statements were admissible, and it is that ruling which appellant spends 25 pages in his brief challenging.
But like the Attorney General, we are rather puzzled by this argument because neither the pre- nor post-Miranda statements were ever asked about or mentioned by the prosecution’s witnesses. We wonder, therefore, what relevance the trial court’s ruling has and what prejudice can be shown?
Riddle could have explained the relevance in his reply brief but elected not to file one; instead, he filed a supplemental opening brief raising a new issue. So, we reviewed the record to see if maybe Riddle forewent his opportunity to testify because of the trial court’s ruling but could find nothing to support that theory. He put on no defense; and, when asked after the prosecution rested whether he intended to testify, he simply said he had consulted with trial counsel and had elected not to. There was no hint his decision was based on the trial court’s pre-trial ruling. Thus, whether the admission of Riddle’s post-Miranda statements would have been prejudicial is possibly an interesting academic question but it is irrelevant here.
B. Substantial Evidence Supports the Judgment
In his supplemental opening brief, Riddle argues no substantial evidence supports the jury’s verdict on count 2. Count 2 alleged that he violated Penal Code section 311.4, subdivision (c). That subdivision provides, in relevant part, that, “Every person who, with knowledge that a person is a minor under the age of 18 years [] knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, [] to engage in or assist others to engage in either posing or modeling [] for purposes of preparing any [] photograph [] that contains [] sexual conduct by a minor under the age of 18 years [] is guilty of a felony.”
He also argues a judgment based on insufficient evidence violates his due process rights under the federal and state constitutions. We treat the two arguments together.
Relying on the majority opinion’s statement in People v. Hobbs (2007) 152 Cal.App.4th 1-that subdivision (c) of Penal Code section 311.4 “targets the person actually filming the pornographic material” (id. at p. 6; italics omitted, fn. omitted)-Riddle argues that as it was the minor who took the photographs, not him, he could not have violated that subdivision. He argues that “all parties agree, and the evidence showed that [he] had no part in filming the pornographic material, and thus there is insufficient evidence to uphold this charge and the conviction must be reversed for insufficient evidence.” But Riddle takes the court’s statement out of context and ignores the plain meaning of the statute.
In Hobbs, defendant secretly entered a high school girls’ locker room and set up a hidden camera so he could film the girls as they dressed and undressed for a swim meet. He was convicted of violating subdivision (c) of section 311.4. He argued he could not have violated subdivision (c) because an element of the crime is that the victim must “pose” for the photographs. Posing, he asserted, meant there had to be some “personal interaction” between the victim and the photographer. It meant the victim had to take a “position” at the “direction” of the photographer. None of that occurred; he only took photographs. Although the case ultimately turned on whether the girls had “posed” by exposing themselves in the locker room, as part of its analysis the court reviewed the criminal statutes involving the sexual exploitation of minors. It pointed out how some punished the importers or sellers of the material, and others punished those who developed or exchanged the film. It contrasted those statutes with the language in subdivision (c) and then made the statement that drives Riddle’s argument, that this subdivision targets the photographer.
Read in context, Hobbs was not saying this subdivision only punishes the person who takes the photographs; rather, it was saying subdivision (c) punishes the photographer as opposed to other persons who participate in the creation, production, and distribution of child pornography. Thus, Riddle clearly overreaches when he asserts Hobbs holds that only the photographer can be punished under that subdivision. Further, Hobbs recognized subdivision (c) also punishes those who “coerce minors into engaging in sexual acts.” (People v. Hobbs, supra, 152 Cal.App.4th at p. 7, fn. 8.) If this subdivision were as limited in reach as Riddle claims, then the statute could not punish those who persuade or coerce minors to pose in prohibited sexual acts. But that runs counter to its express language. (Pen. Code, § 311.4, subd. (c) [section punishes anyone who “knowingly promotes, employs, uses, persuades, induces, or coerces a minor” to pose in prohibited sexual acts].) We therefore reject Riddle’s argument that under Hobbs he cannot be convicted under subdivision (c) of Penal Code section 311.4 because he did not actually take the photographs. The evidence shows he persuaded and coerced the minor into taking photographs of herself with the camera he bought her. Such conduct is punishable under subdivision (c).
Finally, Riddle argues there is insufficient evidence he “posed” the minor for the photographs. He says she posed herself when she took the pictures. We may deal with this argument summarily. Riddle told the minor how he wanted to see her in the photographs. Telling a person to be photographed what they are or are not to wear, and the person doing it, is sufficient personal direction to meet the element of “posing” in Penal Code section 311.4, subdivision (c).
III
The judgment is affirmed.