Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD207624, Albert T. Haruntunian, III, Judge.
AARON, J.
I.
INTRODUCTION
A jury convicted Willie Samarron of one count of possessing child pornography after police who were conducting a search of Sammaron's residence found three photographs of nude or partially nude girls in his bedroom. On appeal, Samarron challenges the sufficiency of the evidence to support his conviction, contending that "not all portraits of nude children are pornographic," and that the photographs seized from his house are more akin to works of art depicting nude children than to child pornography because, he maintains, the photographs do not depict a child engaged in actual or simulated sexual conduct, as is required for a violation of Penal Code section 311.11.
Further statutory references are to the Penal Code unless otherwise indicated.
We conclude that the three photographs constitute substantial evidence to support the jury's verdict. We therefore affirm the judgment of conviction.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On July 3, 2007, San Diego Police Detective Ray Morales conducted a search of Samarron's residence. Morales searched Samarron's bedroom, where he found a box on a bookshelf that contained a number of photographs, including one depicting a topless woman and one depicting Samarron naked. Near the box, Morales found three photographs leaning against the bookshelf where the box had been located. One of the photographs shows a "very, very" young female, who appears to be about nine years old, wearing only underwear and a partially visible sock. The girl is sitting, with her legs spread and one leg bent. The girl is lifting her hair up in a manner that Morales described as "provocative." The girl appears to be prepubescent, having no breasts or body hair.
The second photograph depicts the same girl. In this photograph, the girl is naked with one arm wrapped around her midsection and the other hand on her hip. She is posed pushing out one hip to the side and exposing her genitals. Both the first and second photographs display the web address "www.purenymphets.com."
The third photograph depicts a different girl. The girl is nude and lying back on a bed with her legs spread, completely exposing her genitals. This girl also has no breasts or body hair. Morales opined that this girl was approximately nine years old.
Detective Morales arrested Samarron. After waiving his Miranda rights, Samarron told Morales that he had obtained the photographs from a friend at an adult bookstore. Samarron would not disclose the friend's name. Samarron also said that he thought the photographs were legal and that he "thought or believed that the females were of age."
Miranda v. Arizona (1966) 384 U.S. 436.
The San Diego County District Attorney charged Samarron with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a) (count 1)); possessing child pornography (§ 311.11, subd. (a) (count 2)); and possessing drug paraphernalia (Health & Saf. Code, § 11364 (count 3)).
Samarron pled guilty to counts 1 and 3. He elected to proceed to trial on the child pornography charge. A jury convicted Samarron of the charge on February 7, 2008.
On June 27, 2008, the trial court sentenced Samarron to formal probation for three years. The probation order included a number of terms and conditions, including an order that Samarron serve 240 days in local custody. Samarron must also register as a sex offender. Samarron filed a timely notice of appeal.
III.
DISCUSSION
Samarron challenges the sufficiency of the evidence to support the jury's finding that he possessed child pornography. He contends that the photographs do not qualify as child pornography under section 311.11, but rather, are more similar to fine art depicting nude children, such as the Venus of Urbino by Titian and various photographs by Robert Maplethorpe.
1. Standard of review
In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
2. Governing law
Section 311.11, subdivision (a) provides:
"Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any... photograph, negative, slide, photocopy,... 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."
Section 311.4, subdivision (d) defines "sexual conduct" to include the following actual or simulated acts:
"[S]exual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals." (Italics added.)
In People v. Kongs (1994) 30 Cal.App.4th 1741 (Kongs), the court provided a list of factors to consider in determining whether an image is intended to stimulate a viewer by exhibiting a child's genitals, pubic, or rectal area:
"1) whether the focal point is on the child's genitalia or pubic area; [¶] 2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; [¶] 3) whether the child is in an unnatural pose, or in inappropriate attire, considering the age of the child; [¶] 4) whether the child is fully or partially clothed, or nude; [¶] 5) whether the child's conduct suggests sexual coyness or a willingness to engage in sexual activity; [¶] 6) whether the conduct is intended or designed to elicit a sexual response in the viewer." (Id. at p. 1755, citing United States v. Dost (S.D. Cal. 1986) 636 F.Supp. 828, 832 (Dost), affd. sub nom. U.S. v. Wiegand (9th Cir. 1987) 812 F.2d 1239.)
The Kongs court also noted, "With the exception of factor [number six], which is a required element of a Penal Code section 311.4 violation, a trier of fact need not find that all of the first five factors are present to conclude that there was a prohibited exhibition of the genitals or pubic or rectal area: the determination must be made based on the overall content of the visual depiction and the context of the child's conduct, taking into account the child's age." (Kongs, supra, 30 Cal.App.4th at p. 1755.)
Other courts have also emphasized that "consideration of the specific Dost factors [which are enumerated in Kongs] is not mandatory under section 311.4," and that in ruling on a sufficiency challenge in this context, a reviewing court must consider whether, "'based on the overall content of the visual depiction and the context of the child's conduct, taking into account the child's age' [citation]... the photograph depicts an exhibition of the genitals for the purpose of sexual stimulation of the viewer. [Citation.]" (People v. Spurlock (2003) 114 Cal.App.4th 1122, 1133.) In determining whether a particular image constitutes evidence of a section 311.4 violation, "[n]udity is not sufficient, but it is also not strictly necessary." (Spurlock, supra, 114 Cal.App.4th at p. 1129.) "Whether a particular display is an illicit exhibition is a more complicated inquiry than simply asking whether the genitals are exposed. Photographs showing a partially clad pubic area may well be intended to elicit a sexual response on the part of the viewer." (Id. at p. 1129.)
3. There is sufficient evidence to support Samarron's conviction
The three photographs constitute sufficient evidence that Samarron violated section 311.11. The first photo depicts a prepubescent girl wearing only underwear and at least one ruffled sock. She has her hands behind her head, and is lifting up her hair in a provocative way that is unnatural for a child her age. The girl displays her genital area to the camera by bending one leg and opening it to the side. In the second photograph, this same girl is completely nude and is standing in a provocative pose. She is exposing her genitals to the camera by holding one leg out to the side, with one hand on a hip, and displays a suggestive "pout" on her face. The third photograph shows a nude prepubescent girl leaning back on a bed with her legs spread, completely exposing her genitalia. A trier of fact could clearly find that these photographs constitute an exhibition of the genital and/or pubic area for the purpose of sexually stimulating the viewer.
The girl's feet are not visible in the photograph, although the top of a sock is visible on the leg that is bent.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.