Thursday, October 25, 2007
Possessing Multiple Images of Child Pornography Is One Crime—C.A.
By STEVEN M. ELLIS, Staff Writer
An individual who possesses multiple images of child pornography on a computer can only be convicted of one count of possessing such images, the Court of Appeal for the Third District ruled yesterday.
The court ruled that nine of 10 counts on which Timothy Donald Hertzig was convicted of possessing child pornography under Penal Code Sec. 311.11 must be dismissed. The panel said Hertzig’s possession of 30 video images constituted only a single violation of the statute.
Authorities discovered the videos in August 2005 while investigating allegations that Hertzig sexual molested his 6-year-old daughter, and engaged in ongoing sexual molestation of his younger sister beginning when she was 10 years of age.
In addition to the child pornography charges, Hertzig was convicted on five counts of committing a lewd and lascivious act with a child under the age of 14 involving two victims, and one count of unlawful sexual intercourse.
Writing for the court, Justice Vance W. Raye agreed with Hertzig that possession of multiple images on one computer under the present circumstances could not result in multiple violations of the possession statute.
Hertzig argued that possession of multiple images of child pornography was analogous to possessing several baggies of marijuana.
Rejecting prosecutors’ arguments that the statute was designed to provide additional protection to children and that each video was a “separate entity” constituting multiple violations of the statute as “unsupported,” Raye agreed, and noted that the court was unable to locate other cases before it where defendants had been charged with more than one count of possessing child pornography.
He also cited other cases previously before the court involving possession of contraband in order to illustrate the principle that simultaneously possessing one type of contraband constitutes only a single violation.
“The act proscribed by section 311.11 is the act of possessing child pornography, not the act of abusing or exploiting children,” Raye wrote. “[L]ike the courts in these varied types of possession cases, we are not at liberty to fragment a single crime into more than one offense.”
In unpublished portions of the opinion, the court upheld Hertzig’s conviction on the remaining, non-pornography charges, and rejected his contentions that Sacramento Superior Court Judge Troy L. Nunley abused his discretion by denying Hertzig’s request to sever the pornography charges from the remaining counts.
Despite Hertzig’s assertions that the molestation accounts of had been framed by his “scorned” ex-wife, Raye opined that the non-pornography charges were equally strong given the “compelling evidence of guilt” contained in testimony against Hertzig.
He also concluded that the child pornography on the videos was no more likely to inflame the jury than the evidence of Hertzig’s sexual exploitation of his vulnerable young relatives and, more significantly, that the evidence would have been cross-admissible in both trials had severance been granted.
As a result, Raye wrote that denial of severance had not resulted in a gross unfairness amounting to a denial of due process.
The court also held in the unpublished portion that Hertzig, who fired his lawyer and invoked his right to represent himself a week before trial, did not have a constitutional right to change his mind and have new counsel appointed.
Raye further concluded that the trial judge did not err by admitting “prior bad acts” evidence that Hertzig fondled a different minor prior to the charged incidents, and that Hertzig’s due process rights were not violated where he only had access to old CALJIC jury instructions, rather than the current CALCRIM instructions, because the court had worked with Hertzig on an instruction-by-instruction basis to assure that Hertzig was given adequate opportunity to request, challenge, and revise the jury instructions.
Raye was joined in his opinion by Justices Rodney Davis and Ronald B. Robie.
The case is People v. Hertzig, 07 S.O.S. 6347.
Copyright 2007, Metropolitan News Company