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Name: People v. Gerber
Case #: H034639
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/08/2011

Where appellant superimposed child’s head on adult bodies, the evidence is insufficient to support child pornography conviction. Gerber provided his 13 year old daughter with drugs, which they sometimes used together. He also took pictures of her in her underwear. When the daughter reported these activities to her mother, police were contacted. When police arrested Gerber they seized pornographic pictures of women with the daughter’s head pasted on them. As relevant here, a jury convicted Gerber of possession of child pornography (Pen. Code, §311.11, subd. (a)), and two counts of furnishing a controlled substance to a minor (Health & Saf. Code, §11353).

The conviction for possession of child pornography is unsupported where the image does not “depict” an actual child. Section 311.11, subdivision (a) prohibits possession of any image which depicts a child under the age of 18 years personally engaging in or simulating sexual conduct. The legislative history of section 311.11 reflects the purpose of the law was to protect children from sexual exploitation and to criminalize the possession of child pornography. To achieve this objective, and based on the words of the statute, it appears that an actual child must have been used in production and actually engaged in the sexual conduct or simulated sexual acts. To hold otherwise would be to render the word “personally” superfluous and might run afoul of First Amendment protections. As the United States Supreme Court found in Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 250-251, “[v]irtual child pornography is not ‘intrinsically related’ to the sexual abuse of children . . .. ” The nexus between such images and exploitation of children is “contingent and indirect.” The images created by Gerber is akin to virtual child pornography since the superimposing of a child’s head on adult pornographic images does not involve the sexual exploitation of an actual child. Thus, mere possession of them is protected under the First Amendment.

The instructions allowing conviction of Health and Safety Code section 11353 upon proof appellant provided a minor with either cocaine or methamphetamine was prejudicially erroneous. The jury was instructed that providing either cocaine base or methamphetamine to a minor constituted a violation of section 11353. This was error, as methamphetamine is not a substance enumerated in section 11353, and the information did not charge a separate violation of section 11380. When the offense charged in a count is unclear, doubts in determining the identity of the offense must be resolved in favor of the accused. By allowing the jury to find the elements of the two drug counts proven if Gerber furnished either cocaine or methamphetamine, the instruction presented the jury with a legally incorrect theory on which to convict Gerber of violating section 11353. The error was not harmless beyond a reasonable doubt because the jury’s question regarding the drug offense reflected one or more jurors had a doubt whether Gerber furnished cocaine or methamphetamine.