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Name: People v. Petrovic
Case #: B246250
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 03/26/2014

A defendant may “possess” or “control” child pornography under Penal Code section 311.11 even if he did not realize his computer automatically saved images he accessed on the Internet. Defendant was on parole with conditions prohibiting him from possessing or accessing pictures of children engaged in sexual activity. After his arrest for a parole violation, a forensic evaluation of defendant’s computer reflected child pornography in temporary Internet files (TIF), which are automatically created when images on a website are viewed without any action by the computer user. On appeal from his conviction for possessing child pornography with a prior conviction for child molestation (Pen. Code, § 311.11, subd. (b)), defendant claimed that section 311.11 does not prohibit visiting pornographic sites and that he did not knowingly possess or control child pornography within the meaning of the statute. Held: Affirmed. Section 311.11 prohibits knowingly possessing or controlling child pornography and includes broad language to cover child pornography available on the Internet. Although United States v. Kuchinski (9th Cir. 2006) 469 F.3d 853, found the unintentional storage of prohibited material in a TIF constituted a defense under federal law, this defense does not apply to section 311.11 because the state law prohibits a broader range of conduct. While section 311.11 does not apply to those who unintentionally view or download child pornography, it prohibits intentionally using a computer “to find, access, and peruse through quantities of child pornography” and “to deliberately display such images on [the] computer screen.” Here, defendant repeatedly accessed child pornography web sites; he lied to his parole officer about his conduct; and the forensic expert found the TIF’s containing the images were inadvertently left behind when the data was transferred to another location. This conduct violated section 311.11.