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Name: People v. Mahoney
Case #: E055162
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/17/2013

There was sufficient evidence that appellant knowingly possessed or controlled child pornography images in the temporary Internet space on his computers. In an appeal from his conviction for possession of child pornography (Pen. Code, § 311.11, subd. (a)), appellant claimed that there was insufficient evidence to prove that he knew that child pornography and erotica images were in the temporary Internet space on his computers, relying on United States v. Kuchinski (2006) 469 F.3d 853. In Kuchinski, the court held that where a defendant lacks knowledge about the cache files and lacks access and control over those files, it is not proper to charge him with possession of the images unless there is some other indication of dominion and control of the images. The appellate court rejected the insufficiency argument, distinguishing Kuchinski. Here, there was sufficient evidence from which the jury could reasonably infer that appellant knew the web pages he visited were automatically downloaded to his hard drive. He was a sophisticated computer owner and user. He testified that he had done “lots of Internet searches” and “was pretty knowledgeable about computers.” Evidence showed that appellant actively searched the Internet for child pornography and erotica, opened websites containing this material, and displayed multiple images of child pornography on his computer screen. There was also sufficient evidence that appellant knowingly possessed or controlled the images. The jury could reasonably conclude that appellant viewed numerous images of children having sex with adults, which could establish intent or knowledge. The sheer volume of the images on multiple computers, along with Google searches for child pornography and erotica tied to appellant, created sufficient evidence to support the verdict.

There was sufficient evidence that the child pornography was possessed within the 10-year statute of limitations. The information was filed June 2, 2011 and charged appellant with violating section 311.11, subdivision (a) on or about January 4, 2010. Because there is a 10-year statute of limitations for this offense, the prosecution had to prove that appellant possessed the child pornography and erotica after June 2, 2001. Appellant argued that the prosecution failed to prove that he possessed the images in the unallocated spaces on his computers after this date because the prosecution expert testified that he was unable to say when these images were created. The appellate court rejected this argument. The prosecution’s theory was that defendant possessed the images by having them on his computer and there was proof that they were on the computer on January 4, 2010.

Penal Code section 311.11, subdivision (a) is not void for vagueness. The prosecution presented evidence that appellant conducted numerous Google searches for web pages associated with child model sites and child erotica-type content. He argued that section 311.11, subdivision (a) was void for vagueness because it fails to provide adequate notice that entering a search term for child pornography without entering any child pornography websites constitutes criminal behavior. The appellate court rejected this argument. Section 311.11, subdivision (a) punishes possession or control of child pornography or erotica; it does not punish searching for such material if the defendant does not come into possession or control of the images. Here, appellant’s Google searches were circumstantial evidence of his knowledge in possessing or controlling the child pornography and erotica images found on his hard drives. The searches created the reasonable inference that the images on his hard drive were present due to his Google searches.