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Name: People v. Manfredi
Case #: F054453
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/22/2008

The simultaneous possession of multiple child pornography materials at the same location can only be charged as a single criminal offense. Police searched appellant’s home pursuant to a warrant and found multiple images of child pornography on his computer and on several discs. The prosecutor tried to charge each specific piece of child pornography as a separate count of possession of child pornography under Penal Code section 311.11, which criminalizes the possession of “any matter” of child porn. The prosecution argued that multiple counts could be charged because appellant possessed multiple computers, hard drives, discs and tapes. But relying on People v. Hertzig (2007) 156 Cal.App.4th 398, the trial court granted a demurrer without leave to amend the information and allowed only one count to be charged. In this People’s appeal, the court reviewed Hertzig and the possession cases cited therein, and came to the same conclusion. First, the court rejected the prosecution’s attempt to distinguish Hertzig because all the child pornography in that case was found on a single computer. The statutory characterization of singular possession is not dependent based on items being found in a single container. It would make no sense to find a defendant could only be convicted of one count where, for example, there is a massive amount of porn on one item of computer hardware, but of two counts where the defendant possesses one photograph and one slide. Moreover, the use of the term “any matter” in the statute would require application of the rule of statutory construction, codified in Penal Code section 7 that “the singular number includes the plural, and the plural the singular.” The term is also ambiguous, requiring the application of the rule of lenity. Finally, even though the child porn statute has been modified, the Legislature has not taken steps to amend the statute to provide that possession of each piece of pornography can be the basis of a separate count.