APPEAL from an order of the Superior Court of Tulare County. Paul A. Vortmann, Judge. (Super. Ct. Nos. VCF 160436 & VCF 188936).
The opinion of the court was delivered by: Vartabedian, Acting P. J.
CERTIFIED FOR PUBLICATION
The trial court granted, without leave to amend, the demurrer of respondent Eric Manfredi (defendant) to numerous counts of possession of child pornography (Pen. Code, § 311.11),*fn1 finding that the discovery of multiple images of child pornography in defendant's home could not be fragmented into multiple counts. The People appeal, arguing that the trial court abused its discretion when it granted the demurrer without leave to amend because the complaint alleged a separate piece of physical media as to each count. A reading of the statute and relevant cases concerning possession offenses convinces us that the statute is ambiguous and must be resolved in favor of defendant's argument that his simultaneous possession of multiple child pornography materials at the same location is chargeable as but one criminal offense under that specific statute. Accordingly, we affirm.
Procedural and Factual Background
A warrant was obtained to search defendant's home. During the search, officers found child pornography on defendant's computer. The computer and several discs were seized. The computer and discs contained numerous images of sexual acts with young boys. A second search was authorized and more pornography was found. As a result of the seizure of the pornography, minor victims of sexual crimes perpetrated by defendant were identified. In a 46-count complaint, defendant was charged with numerous counts of possession of child pornography as well as numerous counts of sexual activity with minors.*fn2 (Super. Ct. case No. VCF 160436)
Prior to the preliminary hearing, the court ruled on the motion to suppress filed by defendant claiming the search of his home was illegal. The trial court granted the motion to suppress and dismissed all of the possession of child pornography charges. The court proceeded to the preliminary hearing on the remaining counts, and defendant was held to answer. The court denied the People's request to reinstate the dismissed counts. The People appealed. We disagreed with the trial court and found the search to be a valid search. In our opinion filed April 7, 2007, we reversed the denial of the People's motion to reinstate the criminal complaint.
Prior to the issuance of our opinion in case No. F050483, on June 26, 2006, a first amended information in VCF 160436 was filed against defendant based on the 24 counts of sexual activity with minors that remained after the preliminary hearing.
After our opinion in F050483 was final, the People attempted to re-file the felony complaint in VCF 160436 containing all counts that had been dismissed as a result of the motion to suppress and additional counts based on their continuing investigation from the property recovered during the search. This complaint did not contain the 24 counts of sexual activity because those counts were contained in the information that was filed after the preliminary hearing. The People's attempt to re-file the complaint was refused by the clerk. The People then filed a complaint containing counts 1 to 109, including the 24 counts that had already become an information in case No. VCF 160436. This new complaint was assigned a new case number, number VCF 188936.
Defendant filed demurrers to both complaints. At issue here is the final demurrer to case number VCF 188936 where defendant claimed that he could be charged with only one count of possession of child pornography. The complaint in that case, as it stood at the time of the demurrer, contained counts 1 through 4, alleging that defendant committed the crime of sexual exploitation of a child in violation of section 311.3. In count 6, defendant was charged with using a minor for sex acts in violation of section 311.4. Count 7 was an allegation of presentation of obscene conduct in violation of section 311.6. Counts 5, 8 through 28, and 94 through 109 charged defendant with misdemeanor possession of child pornography occurring on or about March 1, 2006, in violation of section 311.11. Each count of possession of child pornography identified a specific piece of child pornography. Counts 29 through 93 alleged various felony sex crimes against minors.
Relying upon the recent opinion of People v. Hertzig (2007) 156 Cal.App.4th 398 (Hertzig), defendant argued in his demurrer that it was error to fragment the possession of child pornography into multiple counts and that he could be charged with one count only of possession of child pornography. The People argued that defendant could be charged with multiple counts because he possessed multiple computers, multiple hard drives, multiple discs, and multiple tapes. The trial court followed Hertzig and granted the demurrer without leave to amend as to counts 8 through 28 and 94 through 109. Count 5 remained as the only count charging defendant with possession of child pornography.
The People filed a timely notice of appeal.
We begin our discussion with a brief history of the laws surrounding the possession of obscene materials. "At the time California adopted its obscenity prosecution scheme in 1961, the Legislature did not enact a specific statute prohibiting the possession or distribution of child pornography. In 1969, the United States Supreme Court struck down a Georgia law banning the private possession of obscene material as violative of the First Amendment. (Stanley v. Georgia (1969) 394 U.S. 557, 568.) In 1973, the United States Supreme Court issued Miller [v. California (1973) 413 U.S. 15, 24-25], augmenting Roth's [Roth v. United States (1957) 354 U.S. 476] 'prurient interest' test with a more elaborate test requiring an inquiry into the value of the questioned material.
"In 1982, the United States Supreme Court issued New York v. Ferber (1982) 458 U.S. 747, distinguished on other grounds in Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234. Ferber held that distribution of child pornography abused children, child pornography was not subject to the ...