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Name: People v. Sample
Case #: D058317
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/17/2011

Multiple convictions for possession of child pornography are permissible where the possession occurs at different times and locations. A jury convicted appellant of numerous offenses, including three counts of possessing child pornography (Pen. Code, § 311.11, subd. (a)). A Florida burglary prior was found to be a prior serious felony, resulting in a five-year enhancement as well as the doubling of the sentence. Appellant challenged the three convictions for possession of child pornography, asserting that although the images were located in different devices and two separate locations, they constituted only one count of possession. The pornography was found in appellant’s backpack in a computer and a hard drive; it was also located in a computer in appellant’s storage shed. The Court of Appeal reversed one count of conviction, finding the other two counts were permissible because appellant’s actual possession of child pornography in the devices found in his backpack was separate and distinct from his constructive possession of child pornography in the computer found in his storage shed.

There was sufficient evidence to establish appellant’s Florida burglary prior is a serious felony in California. To prove the prior the prosecution introduced documents from appellant’s Florida burglary conviction, including a transcript of the taking of the plea. Appellant contended there was insufficient evidence to support the prior. The Court of Appeal found that although the Florida burglary statute is broader than California’s first degree burglary statute and could include conduct which is first degree burglary or a lesser offense, the reporter’s transcript of the plea provided sufficient evidence that the Florida offense was a serious felony in California. A prosecutor’s comments made prior to entry of a plea are part of the record of conviction. Without defense objection, the Florida prosecutor recited as a factual basis for the plea that appellant entered a residence without the victim’s permission and took the victim’s wallet. This established that appellant entered a residence with the intent to steal. Further, the prosecutor’s statement was not hearsay because it constituted an adoptive admission. Except in some circumstances, such as the entry of an Alford plea (North Carolina v. Alford (1970) 400 U.S. 25) “a defendant would . . . reasonably be expected to object to or respond to the prosecution’s factual recital” if it did not accurately summarize the offense to which the defendant was pleading guilty or no contest.