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Name: People v. Baird
Case #: B166017
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 03/22/2004
Subsequent History: Rev. den. 6/9/04

Distributing child pornography to a minor, within the meaning of Penal Code section 311.2, subdivision (d), is properly punished as a felony. Defendant was convicted of two offenses, a violation of section 311.2, subdivision (d), and a violation of Penal Code section 664/288.2, subdivision (b), attempting to send harmful material to a minor with the intent to seduce a minor. He was placed on probation with a suspended prison sentence. After defendant was found to have violated the terms of his probation by having a computer in his home to which he had access, the court ordered that the previously suspended sentence be executed. Appellate counsel filed a Wende brief, but the court solicited supplemental briefing on the issue of whether a first violation of section 311.2, subdivision (d), could be punished as a felony. The court held that the legislative history of that section made it clear that a violation of the section should be punished as a felony, rather than as a misdemeanor under section 311.9, subdivision (a), which applies to multiple convictions for violations of section 311.2, subdivisions (a) and (b), governing the distribution of child pornography to adults. In adopting section 311.2, subdivision (d), the legislature clearly intended to punish the distribution of child pornography to minors more harshly.