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Name: Tecklenburg v. Appellate Division
Case #: C055368
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/08/2009
Summary

Penal Code section 311.11 prohibits possession or control of child pornography, including an image of child pornography as it is displayed on a computer screen, and is not limited to knowing possession or control of the computer’s underlying data or files containing the image. Petitioner was convicted of six misdemeanor counts of Penal Code section 311.11 (knowing possession or control of child pornography). On the order of the California Supreme Court, the appellate court issued a writ to the superior court appellate division to transfer the matter to the Appellate Court for consideration as to [1] whether there was sufficient evidence to support the conviction and [2] whether a defendant can be convicted of possession of child pornography stored in a computer’s cache files, absent evidence that he was aware the cache files existed. [1] The court found that the following evidence was sufficient to support the conviction: numerous images of child pornography were found on petitioner’s home computer as well as computers to which he had access at his workplaces; much of the pornography was similar, and some of it was the same; petitioner made a spontaneous statement to the investigator and another to his boss, both which could be inferred as demonstrating consciousness of guilt. [2] Every time a web page is accessed on the Internet, the computer automatically stores the material in a cache location without affirmative action by the user. Here, the cache location of appellant’s computers evidenced that he had actively searched for child pornography web sites, opened such sites, etc. The court determined that the plain language of section 311.11 prohibits control of any child pornography image and that there is no need for evidence that petitioner was aware of the cache location itself. (Compare U.S. v. Kuchinski (9th Cir. 2006) 469 F.3d 853.)