Metropolitan News-Enterprise


Thursday, March 27, 2014


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Visiting Child Pornography Websites Is a Crime—Appeals Court


By a MetNews Staff Writer


Viewing child pornography on the Internet constitutes the crime of “possessing” or “controlling“ such matter, in violation of Penal Code §311.11, the Court of Appeal for this district held yesterday.

The court also said that viewing the images constitutes possession inasmuch as a PC automatically captures the images, downloading them to the cache, and that causing them to be visible on the screen amounts to control.

Div. Six, in so ruling, rejected the appellant’s contention—based on his reading of dictum in the Third District’s opinion in Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402—that the mere viewing of such images is not a crime in California. That opinion was authored by then-Court of Appeal Justice Tani Cantil-Sakauye, now California’s chief justice, who wrote:

“We wish to be clear. Although a few states have prohibited the viewing of child pornography, we do not interpret section 311.11, subdivision (a), as doing so.”

The observation was dictum because Cantil-Sakauye went on to say that the defendant in the case “knowingly possessed or controlled images of child pornography,” including his controlling the images by manipulating them on his PC.

Gilbert’s Opinion

In his opinion filed yesterday, Presiding Justice Arthur Gilbert said:

“However tantalizing, a dictum is not a holding.”

Avoiding an outright rejection of the dictum, Gilbert sought to pare its breadth, saying:

“We interpret this dictum to mean that those who unintentionally view child pornography or unknowingly download it on their computers are not in violation of section 311.11.”

For the proposition that viewing images constitutes “controlling” them, Gilbert relied on an opinion of the New York Supreme Court Appellate Division, which says:

 “By accessing the Web sites, the defendant has the ability to manipulate, download, copy, print, save, or e-mail the images; it is not important whether he chooses to engage in these additional activities ‘because intentionally seeking out child pornography and purposefully making it appear on the computer screen for however long the defendant elects to view the image itself constitutes knowing control....’ ”

Federal View Rejected

Gilbert’s opinion rejects the appellant’s contention that the Ninth U.S. Circuit Court of Appeals’ decision in United States v. Kuchinski (2006) 469 F.3d 853 should be applied. There, it was held that a defendant is not guilty of possessing child pornography if he or she merely visits child pornography websites, does not download images, and does know that the images are automatically saved in the computer’s cache.

“[T]he federal and state statutes are different and subject to different interpretations,” the jurist wrote, noting that the court in Tecklenburg came to the same conclusion.

The case is People v. Petrovic, 2014 S.O.S. 1549.


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