APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. (Super. Ct. No. SCD224512)
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part, and remanded with directions.
A jury convicted Julius Allen Sample of three counts of receiving stolen property (Pen. Code, § 496, subd. (a)),*fn1 two counts of identity theft (§ 530.5, subd. (a)), three counts of possessing child pornography (§ 311.11, subd. (a)), six counts of residential burglary (§§ 459, 460) and one count of burglary (§ 459). The jury also found true allegations that another person, other than an accomplice, was present during five of the residential burglaries (§ 667.5, subd. (c)(21)). In addition, the trial court found true allegations Sample had a prior serious felony conviction and a prior strike conviction (§§ 667, subd. (a)(1), (b)-(i), 1170.12). The trial court sentenced Sample to an aggregate term of 42 years 4 months in prison.
Sample appeals, contending there is insufficient evidence to support three separate convictions for possession of child pornography. He also contends there is insufficient evidence his prior Florida burglary conviction qualified as a prior strike conviction under California law.
The People concede Sample could only be convicted of two of the three counts of possession of child pornography, and we reverse the judgment as to one of the counts. We affirm the judgment in all other respects.
Child Pornography Convictions
After Sample's arrest, police officers searched Sample's backpack and his storage shed. In Sample's backpack, the officers found a stolen computer and a removable hard drive. In Sample's storage shed, the officers found another stolen computer. Both computers and the hard drive contained child pornography. The prosecution charged and the jury convicted Sample of three counts of possession of child pornography: one count for the child pornography on each computer (counts 19 and 20) and one count for the child pornography on the hard drive (count 21).
On appeal, Sample contends we must reverse two of his possession of child pornography convictions because case law only permits one conviction for simultaneous possession of multiple images of child pornography, even if the images are contained on different computers or hard drives. The People concede Sample could not be properly convicted of all three counts of possessing child pornography. Nonetheless, the People contend Sample could be properly convicted of one count for possessing the child pornography in the computer and removable hard drive found in his backpack, and one count for possessing the child pornography in the computer found in his storage shed because the possession occurred at different locations. We agree.
California law prohibits the knowing possession of "any matter" depicting persons under 18 years of age engaging in or simulating sexual conduct. (§ 311.11, subd. (a).)*fn3 Two appellate courts have addressed the question of whether simultaneous possession of multiple items of child pornography constitutes multiple offenses or a single offense: People v. Hertzig ...