People v. Gerber
196 Cal. App. 4th 368
Cal. Ct. App.2011Background
- Defendant Gerber was convicted of five counts including possession of child pornography and furnishing a controlled substance to a minor.
- The victim, J., was 13–14 years old during the relevant timeframe and testified to cocaine, marijuana, alcohol, and sexualized photography with Gerber.
- Evidence included images edited to depict J.’s head on adult bodies; defendant admitted to photographing J. in underwear and to offering cocaine for pictures.
- The information and amendments involved counts 4–5, alleging cocaine base as the controlled substance; an amendment added methamphetamine to those counts.
- Trial court instructed counts 4–5 as cocaine base and/or methamphetamine; jury later found guilty on all counts; no defense presented.
- The court later struck a no-contact order at sentencing and remanded for potential retrial on counts 4–5.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for §311.11 | Photos depict J.’s head on adults, claiming ‘depict’ equates to personal involvement. | ‘Personally engaging’ requires a real child actually engaging in the conduct; superimposed images do not meet this. | Insufficient evidence; conviction reversed. |
| Instructional error on Health and Safety Code 11353 | Counts 4–5 could be proven by cocaine base; amendment to include methamphetamine was proper. | Separate offenses for cocaine base and methamphetamine; instruction permitted an invalid theory. | Instructional error not harmless beyond a reasonable doubt; counts 4–5 reversed. |
| Authority of the no-contact order | Order authorized under §1202.05 for certain sex offenses. | No such authorization; order lacks statutory basis. | No-contact order stricken; remanded for possible retrial only on Counts 4–5. |
| Potential ineffective assistance / omission of 'personally' term | Counsel conceded guilt as to count 1; minimal impact if counts vacated. | Omission of 'personally' argued for appellate relief; waiver of this issue. | Not reached due to reversal on primary counts. |
| Whether information properly charged counts 4–5 | Amendments conformed to proof; 11353 reference adequate. | Amendment to add methamphetamine violated charging rules and 1009 constraints. | Counts 4–5 properly charged for 11353; however, instructional error requires reversal. |
Key Cases Cited
- In re Alva, 33 Cal.4th 254 (Cal. 2004) (First Amendment considerations for statutory interpretation of 311.11)
- Ferber, 458 U.S. 747 (U.S. 1982) (Child pornography standard; production as crime; non-obscene images)
- Osborne v. Ohio, 495 U.S. 103 (U.S. 1990) (Possession of child pornography constitutional when protecting victims)
- Free Speech Coalition, 535 U.S. 234 (U.S. 2002) (Invalidity of virtual child pornography provisions under CPPA)
- United States v. Williams, 553 U.S. 285 (U.S. 2008) (Ferber framework; limits on obscenity vs. child exploitation)
- Griffin v. United States, 502 U.S. 46 (U.S. 1991) (Distinguishes law errors from weight of evidence; harmless error rule)
- People v. Guiton, 4 Cal.4th 1116 (Cal. 1993) (Inadequate legal theory cannot save jury verdict; harmless error framework)
- People v. Davis, 10 Cal.4th 463 (Cal. 1995) (Standard of review for sufficiency of evidence)
- People v. Schueren, 10 Cal.3d 553 (Cal. 1973) (Form and substance distinctions in charging multiple offenses)
- People v. Sedeno, 10 Cal.3d 703 (Cal. 1974) (Trial court must instruct on relevant law; preservation of substantial rights)