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Name: People v. Luera
Case #: B134479
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 02/24/2001
Subsequent History: None
Summary

Appellant’s conviction under Penal Code section 311.11 is not arbitrary and does not violate due process principles. The rating by the Motion Picture Association of America does not immunize a person making or distributing child pornography illegal. The trial court properly denied appellant’s motion to disclose the identity of the informant because the showing here of a reasonable possibility that the informant could give evidence which might result in appellant’s exoneration was sheer unreasonable speculation. The possibility that the informant had downloaded the child pornography on appellant’s computer was rebutted by appellant’s own admission to the officer that appellant had downloaded the material. Accordingly, if it was error, it was harmless. The trial court properly denied appellant’s motion to traverse the warrant after holding an in-camera hearing in which it determined there were no intentional misstatements made in the affidavit or any statements made with reckless disregard for the truth per Franks v. Delaware (1978) 438 U.S. 154, 155-156. The trial court properly refused to quash the warrant because the affidavit contained sufficient information to establish probable cause. An anonymous informant contacted the police and identified appellant, stating that he was involved in internet communications and child pornography, and had a prior conviction for it. Where appellant admitted he downloaded images of child pornography from the internet, and accessed such an image and displayed it to the arresting officer, the evidence was sufficient to permit a reasonable trier-of-fact to conclude beyond a reasonable doubt that appellant knowingly possessed the images found on his computer’s hard drive. The constitutional protection of privacy contained in article I, section 1, of the California Constitution is not absolute and must yield to compelling state interests. Moreover, the right to privacy does not extend to the possession of child pornography banned by Penal Code section 311.11. The right to privacy does not extend any further than the First Amendment with regards of child pornography, and criminalizing its possession is not forbidden by the First Amendment. |Appellant’s conviction under Penal Code section 311.11 is not arbitrary and does not violate due process principles. The rating by the Motion Picture Association of America does not immunize a person making or distributing child pornography illegal. Penal Code section 311.11 is not unconstitutionally vague. If appellant had no way of knowing whether the films he possessed were rated by the Motion Picture Association of America, then he cannot claim to have relied on the exemption. Moreover, an MPAA rating does not constitute a legal determination that the film is legal. It only exempts those who possess it from prosecution under section 311.11. Penal Code section 311.11, which prohibits the possession of child pornography, exempts, in subdivision (d), the possession of any film rated by the Motion Picture Association of American. The Court of Appeal held that this is not an unconstitutional delegation of legislative power, because the statute contains a detailed description of prohibited conduct, and merely exempts from it the operation of the statute the possession of any film rated by the MPAA. This exemption would not protect the actors, producers, etc. of any child pornography film, but only the innocent purchaser. Accordingly, it does not delegate to the MPAA the determination of whether material is pornographic Penal Code section 311.11, which prohibits the possession of child pornography, exempts, in subdivision (d), the possession of any film rated by the Motion Picture Association of American. The Court of Appeal held that this is not an unconstitutional delegation of legislative power, because the statute contains a detailed description of prohibited conduct, and merely exempts from it the operation of the statute the possession of any film rated by the MPAA. This exemption would not protect the actors, producers, etc. of any child pornography film, but only the innocent purchaser. Accordingly, it does not delegate to the MPAA the determination of whether material is pornographic. The constitutional protection of privacy contained in article I, section 1, of the California Constitution is not absolute and must yield to compelling state interests. Moreover, the right to privacy does not extend to the possession of child pornography banned by Penal Code section 311.11. The right to privacy does not extend any further than the First Amendment with regards to child pornography, and criminalizing its possession is not forbidden by the First Amendment. Penal Code section 311.11 is not unconstitutionally vague. If appellant had no way of knowing whether the films he possessed were rated by the Motion Picture Association of America, then he cannot claim to have relied on the exemption. Moreover, an MPAA rating does not constitute a legal determination that the film is legal. It only exempts those who possess it from prosecution under section 311.11