Wednesday, December 10, 2025
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C.A.: Vacatur of Child Pornography Conviction Requires More Than Showing of Past Abuse
Opinion Says Trial Judge Erred in Setting Aside Judgment Based on 2021 Law Available to Sexual Violence Survivors, Justices Disagree on Who Qualifies as ‘Victim’ Under Scheme
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal held yesterday that a 2021 statute allowing a convict to seek vacatur of his or her conviction if the crime “was a direct result of being a victim of…sexual violence” does not require that the abuse be ongoing at the time of the charged incident, drawing a separate opinion as to the interpretation of the statute, but does mandate that there be “a close causative nexus” between the arrest and the offense at issue.
At issue is Penal Code §236.15, which provides:
“If a person was arrested for or convicted of any nonviolent offense committed while the person was a victim of intimate partner…or sexual violence, the person may petition the court for vacatur relief of their convictions….The petitioner shall establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of intimate partner violence or sexual violence that demonstrates that the person lacked the requisite intent to commit the offense….”
In yesterday’s opinion, authored by Justice Michael J. Raphael and joined in by Acting Presiding Justice Carol D. Codrington, the court found the “causative nexus” lacking in the case before the court, saying that a trial judge erred in granting the petition of a man who was charged with possessing more than 600 images of child pornography four years after the latest incident of alleged abuse against him.
Raphael opined that “the causal connection between the sexual violence defendant suffered and his possession of child pornography is attenuated by the passage of time, together with other contributing factors,” including a purported history of extreme non-sexual abuse.
Concurring in the judgment, Justice Frank J. Menetrez wrote separately to say:
“I agree with the majority opinion that S.H.’s petition should have been denied, but my reasoning differs from the majority opinion’s. S.H. committed the child pornography offense in 2022, but there is no evidence that he was subjected to sexual violence after 2018. He is consequently ineligible for relief, because he was not ‘a victim of…sexual violence at the time of the’ offense…and did not commit the offense ‘while [he] was a victim of…sexual violence’….”
2023 Conviction
Seeking relief from his conviction was a defendant, identified only as “S.H.,” who was convicted in February 2023 of possessing the offending material in violation of Penal Code §311.11(A) and sentenced to two years of formal probation and 90 days in jail, to be completed on a work-release program. He was also ordered to register as a sex offender.
In September of that year, he petitioned to have his conviction set aside under §236.15, citing a childhood history of “extreme violence” by his mother and sexual abuse by his father and others. He also claimed that he was raped in 2018 by a man he was dating.
S.H. asserted that he voluntarily sought treatment through the California Sex Offender Management Board after his arrest. Terry Gatewood, the program’s clinical director, submitted a letter in support of the petition, saying that the defendant’s “Post-Traumatic Stress Disorder caused by the [2018] rape event” and the memories from his childhood were “directly responsible” for his viewing of the child-depicting material.
Retired San Diego Superior Court Judge Charles G. Rogers, sitting by assignment on the Riverside Superior Court, granted S.H.’s petition.
Bottom Line
Citing subdivision (g) of §236.15, Raphael said:
“The bottom line…is that a section 236.15 petitioner’s burden is to establish that he…‘was a victim of…sexual violence at the time of the alleged commission of the qualifying crime,’ and his or her arrest and conviction were ‘a direct result of being a victim of…sexual violence.’ If the court is persuaded of those two elements, and also finds vacating the conviction would be ‘in the best interest of justice,’ it ‘may vacate the conviction and expunge the arrests and issue an order’ granting the petition.”
Rejecting the assertion by attorneys with the Riverside County District Attorney’s Office that a defendant “must have been victimized concurrent with his commission of the crime” to qualify for relief, the jurist said that the “ordinary meaning of ‘victim’ leads to a different result,” remarking:
“A person who has suffered from a crime directed at them remains a ‘victim’ in that ordinary sense even after the crime is complete and the person is no longer being victimized, whether a day later or years later.”
However, the jurist acknowledged that “[w]e simply do not say someone no longer is a rape victim, but only was a rape victim in the past, the moment the rape itself is over,” he said that the “[l]egislative history provides no definitive answer to this interpretive quandary” and concluded that the section only “excludes any person who became a victim of intimate partner or sexual violence after committing an otherwise qualifying crime.”
He continued:
“Nevertheless, as used in section 236.15, ‘direct result’ certainly requires a close causative nexus between the arrest or conviction and the intimate partner violence and sexual violence.”
Not ‘Direct Result’
Applying that standard, he opined:
“In our view, defendant’s possession of child pornography was not a ‘direct result’ of sexual violence under section 236.15. We have no doubt that sexual violence was a contributing factor, perhaps even a but-for cause. But other contributing factors also were in the mix, and they were significant and unusual, not merely attendant to the sexual violence.”
Raphael added:
“In our view, the length of time between 2018 when defendant last suffered sexual abuse and 2022, when he was caught possessing child pornography, is a particularly persuasive factor. The time between sexual violence and an arrest or conviction for an offense may not always be determinative. On these facts, however, we find the causal connection between the sexual violence defendant suffered and his possession of child pornography is attenuated by the passage of time….We would find ‘direct’ causation a tougher question had defendant possessed the pornography shortly after the 2018 rape for a more limited time, rather [than] continuously over several years.”
The court reversed the order granting the petition and remanded with directions to enter a new decree denying relief.
Menetrez’s View
Menetrez wrote:
“The majority opinion claims that under ‘the ordinary meaning’ of the word ‘victim,’ once a person becomes a victim of a crime, the person remains a victim forever thereafter.”
Saying “[t]hat cannot be the meaning,” he pointed out that §236.15(l) specifies that “[a] petition pursuant to this section shall be made and heard within a reasonable time after the person has ceased to be a victim of…sexual violence,” suggesting that a party does not remain a “victim” indefinitely.
Continuing, he wrote:
“But that does not make section 236.15 difficult to interpret. There is an alternative but equally ordinary meaning of the word ‘victim,’ according to which a person commits a crime while the person is a victim of sexual violence…only if the person commits the crime while being subjected to such violence.”
The jurist opined:
“That should be the end of the matter. The plain language of the statute compels rejection of the majority opinion’s putative ordinary meaning of the word ‘victim,’ and neither the majority opinion nor any party has identified any other way of interpreting the statutory language that would eliminate the requirement that the crime and the victimization be contemporaneous.”
The case is People v. S.H., 2025 S.O.S. 3614.
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