Sufficient evidence supported defendant’s conviction for preparing pornographic images of a minor (Pen. Code, § 311.4, subd. (c)) where he posed the toddler victim for pornographic films and videos, but she did not voluntarily pose or model. Booth was convicted of various sex offenses against children, including five counts of preparing pornographic images of a minor. (Pen. Code, § 311.4.) These counts were based on pornographic videos and photographs of Booth’s niece that he created. On appeal, he relied on a dissenting opinion in People v. Hobbs (2007) 152 Cal.App.4th 1 to argue there was insufficient evidence to support the section 311.4 convictions because he positioned the minor in the photographs and videos; she did not pose or model herself. Held: Affirmed. Section 311.4, subdivision (c), provides, “Every person who, with knowledge that a person is a minor under the age of 18 years, . . . knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years . . . to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any . . . image, including, but not limited to, any film [or] photograph, . . . that contains or incorporates in any manner, . . . sexual conduct by a minor under the age of 18 years . . . , is guilty of a felony.” Based on the sentence structure of section 311.4, subdivision (c), the dissent in Hobbs concluded that the minor must intentionally pose or model, and that the statute is not violated when the defendant merely poses the minor. The Court of Appeal disagreed. The words “uses” or “coerces” “suggest the posing and modeling need not be something the minor does voluntarily, but instead may be imposed on the minor. . . . [T]he fact that minor did not know she was being filmed does not change the fact that she was unknowingly being used for, and coerced into, poses.” This interpretation is consistent with the purpose of the statute, which is to punish the exploitation of children.

Defendant failed to show the trial court misunderstood its discretion to run the Penal Code section 288.7 sentences concurrently. Booth was sentenced to a determinate term of 8 years 4 months, plus an indeterminate term of 120 years to life. On appeal he also argued the trial court erroneously believed it had no discretion to run the sentences for his section 288.7 convictions concurrently. The Court of Appeal disagreed. A judgment is presumed correct and the defendant has the burden to affirmatively demonstrate error. The phrases Booth relied on in the record did not indicate that the court was unaware of its discretion to impose concurrent sentences, and were entirely consistent with the court’s proper understanding of its discretion.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G054999.PDF