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Name: People v. Garelick
Case #: H030976
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/08/2008

Evidence of unrelated and uncharged possession of child pornography may be considered by the jury in determining whether defendant is guilty of the charged possession of child pornography, without a preliminary finding by the jury of a mental state as to the uncharged offense. Appellant was charged with attempted lewd act on a child under the age of 14 (Pen. Code secs. 664, 288, subd. (a)); attempted distribution of harmful matter to a minor (Pen. Code, secs. 664, 288.2, subd. (b)); and possession of child pornography (Pen. Code, sec. 311.11, subd. (a)). Pursuant to Evidence Code section 1101, subdivision (b), evidence that appellant possessed 118 images of possible child pornography on his computer was offered to prove appellant’s intent to violate section 311.11. The appellate court rejected appellant’s argument that CALCRIM 375 should be modified to require the jury to make a preliminary finding that appellant possessed the images with the required mental state to violate section 311.11, because the quantity of the material and the fact that the items were stored in separate places, alone, were relevant to show that the possession was not accidental or inadvertent with an element of innocent intent. (People v. Robbins (1988) 45 Cal.3d 867, 879.) The appellate court also rejected appellant’s argument that CALCRIM 220 impermissibly shifts the burden of proof to the defense by requiring the jury to “compare” the evidence presented at trial, thereby placing the burden on defendant to present evidence. Quoting People v. Hearon (1999) 72 Cal.App.4th 1285 [Third District], the court opined, “the time has come for appellate attorneys to take this frivolous contention off their menus.” Finally, the court found that Penal Code section 288.2, subdivision (b) did not violate the Commerce Clause or the First Amendment of the United States Constitution as it is sufficiently tailored to serve the compelling state interest of protecting children.