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Internet Crimes and Child Pornography: Latest Court Ruling on the Application of California Penal Code Section 311.11

Posted by Dmitry Gorin | Oct 27, 2007 | 0 Comments

Soutern Callifornia criminal attorneys have noticed that police at the local, state, and federal levels has been investing more and more resources into the investigation of internet crimes. In California, frequently committed internet crimes include: internet fraud, phishing, credit card fraud, illegal downloading, child pornography, illegal pornography, and illegal distribution of viruses/spam. With the recent publicity of "To Catch a Predator" on NBC's Dateline, the public is more aware of suspects attempting to use the internet to engage in sexual chat and activities with minors.California Penal Code Section 311.11 specifically makes illegal the possession of child pornography. While pornography overall is typically protected speech under the 1st Amendment of the U.S. Constitution (as ruled over 30 years ago during the Larry Flynt obscenity trials), child pornography is considered to be harmful and illegal speech, and is not subject to constitutional protections. The law is clearly aimed at protecting minors from exploitation, and victimization.Los Angeles Criminal Defense Lawyers should be aware of the latest ruling in California, People v. Herzig, interprets Section 311.11. The ruling states that an individual who possesses multiple images of child pornography on a computer can only be convicted of one count of possessing such images. In other words, if the police recover a computer with mutliple images from suspect's home, the defendant can only be charged with one criminal violation. As a result, in the Herzig decision, the Appeals Court ruled that nine of 10 counts on which Timothy Donald Hertzig was convicted of possessing child pornography under Penal Code Sec. 311.11 must be dismissed. The panel said Hertzig Tagged as: federal law and defense, sex crime accusations


krisna on March 13, 2010 at 11:24 a.m. wrote: well in my opinion its not fair... there are no victims of pornography if they dont allow themselves to be victims... and in most cases those who are convicted with possession of child pornography were innocent, (what im talking about are those arrested because he downloaded songs in someones library not knowing that that library has child porns) you are just downloading music and now you get to prison. you lost job, you think you are disgusting, it ruined your life. but actually you are just a victim. the persons who are entitled to goin prison are those in the images and videos having intimate moment with the child and not those victims of distribution on internet. there are lots of innocent people fund of using internet in a decent way but because theyre unlucky someone shared this things to his computer now he gets to jail. you have to admit that in some point of your life you get curious of things, why dont we give first offense or warning, so the person that is innocent of this things thats happening would be aware and scared then if you think he does it again then put him to jail for 100 years. thats it. innocent people got lots of future plans and in a matter of minutes all of it went away.. think of it. put your selves on their shoes. maybe youll understand. drenield on December 12, 2009 at 8:07 a.m. wrote: uh.. good . Tania Bakar on May 26, 2009 at 3:25 p.m. wrote: This ruling is interesting. I understand the legal measures taken in this ruling in a way protect the perpetrator. However, when I think about it more, I tend to want to compare this ruling to various other criminal activities that can get you punished more than once. For example, when we run a stop sign you don't get only 1 ticket and then you can continue to run stop signs and not be fined after that. So, it is not necessarily stopping the person who have child pornography on their computer to get rid of it. It's a one time get busted scheme. If this is how the law needs to be, then I think they should raise the consequences of people who are being caught with those things in their possession. Also, the internet is an ever expanding weapon that many predators use t hide behind. This is scary and needs to be regulated. There was that one mother who used myspace acting as a boy and pretended that she was interested in one of her daughters friends from school. It was a cruel joke and in result the 'boy' liked the girl then told her she was ugly, so the girl committed suicide. It is even scarier to think of all of those people who lure young children into traps and then either murder them or molest them. The law needs to protect the innocent children on the other side of the computer screen. It is pleasing to see that the police is putting more resources into the investigation regarding crimes of this sort. However, I hope the courts will pass a more stringent ruling on people who are caught with child pornography. Child pornography is a serious issue and the people need to be punished according to its severity! Steven (Matt) Gibson on December 6, 2007 at 4:45 a.m. wrote: To me the ruling in the case makes sense: the law is not against having a certain amount of child pornography, but having it at all. If they want to charge based on the number of images or videos, then those different levels and the accompanying charges should be written into the law. I don't see what allowing multiple charges based on multiple images seeks to accomplish aside from getting a higher conviction than one count. The law is in place as a deterrence against victimization of these children and supporting it, so is we want to stop it we should raise the jail time that accompanies any possession rather than charging based on an amount that is unspecified in the law. Legislators could choose to set a limit where the possession crosses into a higher violation, but this seems excessive an arbitrary. While this kind of behavior is may be viewed as disgusting, these criminals still deserve their fair shake in court and charging them multiple times for the same crime seems excessive. Jessica Shaouli on December 4, 2007 at 2:17 a.m. wrote: This is a tough situation because child pornography is, undoubtedly, a very sensitive and controversial issue. Although most people would agree that each image or article bearing such disturbing and explicit images should be counted as a separate account, I do not think it is fair to do so in MOST cases. The marijuana baggie example is a good analogy and justifies what the punishment should be to a certain extent but like in most crimes, the severity of this issue can range dramatically. I do not believe that someone with 10-20 images on their computer should be punished as harshly as someone with 100 Sandra Doumit on November 30, 2007 at 3:17 a.m. wrote: I think the crime of child pornography is a serious crime in society today. It seems that more and more cases are coming up and for some reason it is not scaring the offenders enough in order to encourage them to stop. I think it is ridiculous that they can only be charged once for several offenses. The law is dedsigned to protect society from the bad people, or those who do wrong, and in this case it seems they are working more to protect the offenders. Thankfully, the Dateline show, 'To Catch a Preditor,' has been aired several times. I have watched this show a few different times now, and I was astonished at how many of them had not only seen the show but were sometimes second time offenders that had been caught before. Obviously more needs to be legally done to stop this horrible crime from happening time and time again, and I think the Supreme Court should weigh in with a much higher sentencing. Meghan Schoen on November 29, 2007 at 10:52 p.m. wrote: I agree that people should not be charged per item of child pornography; however, I think the sentence should vary depending on the quantity. For example, if someone has five to ten items of child pornography they should suffer a less strict sentence than someone with hundreds of items of child pornography. The article compared the punishment for child pornography to the method of punishment for marijuana; however, unless I am mistaken don't people with pounds of marijuana suffer a harsher consequence than those who have a smaller amount for personal use? Also, I think the punishment should be harsher. Child pornography is a disturbing crime, and three to five years doesn't seem like a strong enough deterrent in my opinion. However, I do agree with a previous comment made in this blog that the offenders should be required to go to therapy in addition to jail time. Jail time can act as punishment, but therapy can help to assure that the offense doesn't occur again. Kelsey Kernstine on November 27, 2007 at 2 p.m. wrote: The Internet has definitely increased the amount of child pornography. Often people abuse websites, such as using it for child pornography; however, many people don Amanda Hester on November 25, 2007 at 7:43 p.m. wrote: While I agree that a person should not serve 120 years in prison for having 30 pictures of child pornography (thank you Kyle for doing the math,) I believe jail time should be coupled with therapy. Clearly watching child pornography is a choice, but the desire to watch I would assume is not. While I don't necessrily believe in the ability to eliminate desires, I do believe in the ability to control them. Prisoners that were convicted of child pornography possession should automatically be required to attend therapy sessions in order to help them control their desires so when they leave the prison system their desires do not grow and lead to actual acts against a child. Kate Monson on November 7, 2007 at 3:31 p.m. wrote: I think the latest ruling that an individual who possesses multiple images of child pornography on a computer can only be convicted of one count of possessing such images is a fairly just rule. If convicted, those accused could spend 3-4 years in jail for one possession. So if someone could be convicted per image then those with 20 images on the screen would be in jail for life. Child pornography is a very serious crime and those convicted need, more than anything, to receive help for their obvious problem. While I think NBC Brian Strand on November 6, 2007 at 6:29 a.m. wrote: It is a given that child pornography is wrong. Everyone knows this. But some people have an addiction, a certain switch in their head that doesn't allow them to see the situation as rationally as most of us. Yet in my mind, there are different degrees of irrationality. As of now, the sentence for this offense is 3-4 years, but I believe there should be varying degrees of punishment. Most people (men) who view pornography on their computer do not just sit and stare at one image. As Kyle stated, there can be many different individual pictures within a photo shoot. It is my belief that someone who views pornography doesn't just look at one shoot either. Pictures are readily available online, so is it really fair that someone who has 5 pictures of a 17 year-old should receive the same punishment as someone who has thousands of pictures and movies of 13 year-olds? The 'marijuana baggie' defense was clever, yet another argument could be used for a different purpose. When caught speeding, you are to be punished with a ticket. But the severity of that speeding ticket depends on how fast you were going in relation to the given speed limit. For instance, fines are doubled if traveling at least 20mph over the posted speed limit. So can we apply this reasoning to the amount of child pornography one has? Say, set a standard of over 100 images warrants a higher penalty? Kyle Reilly on October 27, 2007 at 11:43 p.m. wrote: While most people agree that possessing child pornography is a bad thing, it certainly is not fair to charge someone with 30 separate accounts of possessing child pornography for having 30 different images at one time. If the maximum sentence is 3-4 years for having one image, then a person could be sentenced to almost 120 years in prison. The images could all be very similar in nature and of the same person, just a different camera shot a couple of centimeters above or below in the camera frame. We most certainly should punish those that store or view child pornography as it exploits innocent young children. However, as the Blog states with marijuana, it is not fair to criminalize people several times for the selling of illegal narcotics. Our jails are already overcrowded as it is, and we should focus our efforts on people that actually attempt to solicit sexual favors from minors or attempt to lure them in for their sexual gratification. A person should most certainly be placed in jail for a few months to a few years to reflect on their unlawful actions, but it

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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